Employer petitions to review and set aside an order of the National Labor Relations Board, reported at 252 N.L.R.B. No. 46. The Board cross-petitions for enforcement of its order. The case is remanded to the Board for further action consistent with the content of our opinion.
Before Waterman and Mansfield, Circuit Judges and B. Newman, Judge.*fn*
This case is before this Court upon the petition of ITT Lighting Fixtures, Division of ITT Corporation ("Company") to review and set aside an order of the National Labor Relations Board ("Board") issued on September 26, 1980, and reported at 252 N.L.R.B. No. 46. The Board has cross-petitioned for enforcement of its order. Inasmuch as the Company transacts business within this judicial circuit, this Court has jurisdiction of the proceeding. 29 U.S.C. § 160(e) and (f).
The Company is engaged in the manufacture of lighting fixtures at its Southaven, Mississippi, facility, and it has a warehouse facility located in Memphis, Tennessee. On December 14, 1978, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, ("Union") filed a representation petition with the Board, seeking certification as the exclusive bargaining representative of the Company's production, maintenance and warehouse employees. Pursuant to the petition, a hearing was held with reference to defining the membership of the bargaining unit, at which the supervisory status of the Company's groupleaders was litigated.*fn1 On January 22, 1979, the Regional Director issued his Decision and Direction of Election. He found that the Union's proposed unit was an appropriate unit.*fn2 The Regional Director was unable to determine whether the groupleaders were unit employees or, as the Company contended, supervisors within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C. 152(11) ("Act") and, accordingly, permitted them to vote by challenged ballot in the representation election. The Company's request that the Board review the Regional Director's failure to exclude the groupleaders from the unit was denied by the Board.
On February 16, 1979, pursuant to the Regional Director's Decision and Direction of Election, the Board conducted a secret ballot election. The tally of ballots showed that there were 362 ballots cast, of which 175 were cast for the Union, 153 against the Union and 34 that were challenged and not counted. Thus, the challenged ballots were sufficient in number to affect the results of the election. Thirty-one of these challenged ballots were cast by groupleaders.
Subsequent to the election, the Company timely filed Objections to Conduct Affecting the Results of the Election in which it alleged that it was severely prejudiced at the outset by the Regional Director's failure to find the groupleaders to be supervisors, and that the Union's showing of employee interest in unionization was tainted by the open and pervasive involvement of the groupleaders in activities on behalf of the Union. The Regional Director ordered an evidentiary hearing on the challenged ballots and on the Company's objections. After five days of testimony, the Hearing Officer issued his Report and Recommendations on Employer's Objections wherein he concluded, inter alia, that (1) the challenges to the ballots of the groupleaders be sustained inasmuch as they were supervisors within the meaning of the Act; and (2) the Company's above-mentioned objections be overruled.
The Regional Director, assuming arguendo that the groupleaders were in fact supervisors, adopted the Hearing Officer's recommendation that the Company's objection to their pro-union activities be overruled. However, the Regional Director sustained challenges to only 11 of the ballots of the groupleaders.*fn3 He found that a resolution of the other challenged ballots was unnecessary inasmuch as they would not affect the outcome of the election.*fn4 Thereupon the Regional Director filed a Supplemental Decision and Certification of Representation, certifying the Union as the exclusive bargaining representative for the Company's production, maintenance and warehouse employees employed at both of the Company's locations.
The Company filed a request for Board review of the Regional Director's Supplemental Decision and Certification of Representation. The Board only granted the Company's request for review of the issue of the challenged ballots. Nine months later, the Board filed its decision. It sustained the Regional Director's findings that the eleven groupleaders were supervisors, and further found an additional four groupleaders to be such.*fn5 It left unresolved the status of the other sixteen groupleaders inasmuch as their ballots "cannot affect the election results and, consequently, further action with respect to them is unnecessary." The Board, accordingly, adopted the Regional Director's Certification of Representation. (249 N.L.R.B. No. 61).
The Company, however, refused to bargain with the Union on the ground that the Union was improperly certified, and, on October 2, 1979, the Board issued a complaint against the Company after receiving charges filed by the Union. The Company opposed the complaint and, opposing a subsequent motion for summary judgment, again raised objections to the propriety of the Board's certification of the union as the exclusive collective bargaining agent. On September 26, 1980, the Board granted the motion for summary judgment. It found the Company to be in violation of Section 8(a)(5) and (1) of the Act (29 U.S.C. § 158(a)(5) and (1)) by refusing to bargain with the Union. The Board ordered the Company to bargain collectively with the Union. In its cross-petition the Board now seeks enforcement of that order.
The Company has concededly refused to bargain with the Union in order to obtain the judicial review it now seeks here of the Board's certification of the Union as the exclusive collective bargaining representative of the Company's employees.*fn6 Thus, the only issue before us on appeal is whether the pro-union statements and activities of many of the Company's groupleaders impaired the employees' freedoms of choice in the election so as to justify setting the election aside.
Charged with the responsibility of overseeing the activities of the participants in Board elections, the Board has viewed its function as one of ensuring that
... employees have the opportunity to cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise, free not only from interference, restraint, or coercion violative of the Act, but also from other elements which prevent or impede a reasoned choice.
Sewell Manufacturing Company, 138 N.L.R.B. 66, 70 (1962).
It is well-established that the participation of a supervisor in a union election may in some circumstances so undermine the employees' freedom of choice as to warrant setting the election aside. Catholic Medical Ctr. of Brooklyn, etc. v. N. L. R. B., 620 F.2d 20, 22 (2d Cir. 1980); N. L. R. B. v. Handy Hardware Wholesale, Inc., 542 F.2d 935, # 938 (5th Cir. 1976), cert. denied, 431 U.S. 954, 97 S. Ct. 2675, 53 L. Ed. 2d 271 (1977); Turner's Express, Incorporated v. N. L. R. B., 456 F.2d 289, 292-93 (4th Cir. 1972); N. L. R. B. v. Metropolitan Life Insurance Company, 405 F.2d 1169, 1178 (2d Cir. 1968).
The Board has explained the two-fold threat posed by the participation of a supervisor as follows:
One, in situations where supervisors actively encourage employees to vote for the union and the employer takes no known stance to the contrary, the employees might be led to believe that the employer favors the union. The other conceivable effect involves the possibility that such conduct could coerce an employee into ...