Petition for review of a decision and order of the National Labor Relations Board finding petitioner-employer guilty of an unfair labor practice and ordering employer to engage in collective bargaining with the union. Cross-application by the Board for enforcement of its decision and order.
Van Graafeiland, Meskill, and Newman, Circuit Judges.
Petitioner Royal Coach Lines, Inc. (Royal Coach) seeks review of a decision and order of the National Labor Relations Board (Board), pursuant to section 10(f) of the National Labor Relations Act (Act), 29 U.S.C. § 160(f) (1982). The respondent Board has filed a cross-application seeking enforcement of its order, pursuant to section 10(e) of the Act, 29 U.S.C. § 160(e). In its decision and order, the Board found petitioner guilty of an unfair labor practice in violation of sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1), (5) (1982). See Royal Coach Lines, Inc., 282 N.L.R.B. No. 145 (Feb. 5, 1987). The Board ordered petitioner to engage in collective bargaining with representatives of Local 1181-1061 of the Amalgamated Transit Union, AFL-CIO (union). We grant review of the Board's decision and order and we deny enforcement.
The facts in this case are drawn from the findings of an Administrative Law Judge (ALJ), as adopted by the Board in its subsequent decision. Petitioner Royal Coach is a corporation located in Yonkers, New York, and engaged in the business of providing school bus transportation. In April and May of 1982, the time period at issue here, Royal Coach employed fifty-five people, fifty-three of whom were eligible for membership in an appropriate bargaining unit. In April, Richard Eppolito, an organizer and business representative for the union, spoke with Beniamino F. DiPaolo, the president and sole stockholder of Royal Coach, and obtained permission to approach employees on petitioner's business premises to discuss union representation.
On May 10, 1982, Eppolito met with DiPaolo at the company's office. During that meeting, Eppolito informed DiPaolo that he had obtained authorization cards from a majority of petitioner's employees, indicating that they wanted the union to represent them in collective bargaining. At that time, however, Eppolito actually held cards signed by only twenty-three of the fifty-three employees eligible for membership in the appropriate bargaining unit. There is no evidence that DiPaolo asked to see the cards or to verify their authenticity. Eppolito said that DiPaolo could voluntarily recognize the union as the sole bargaining agent of Royal Coach's employees or the union would petition the Board for an election to have the union certified. DiPaolo expressed interest in voluntary recognition and Eppolito provided him with the language from the union's standard recognition agreement. DiPaolo told Eppolito that subject to consultation with an attorney, he would execute a voluntary recognition agreement that Eppolito could pick up the next day. Eppolito picked up the signed agreement on May 11.*fn1
Sometime after the May 10 meeting, Eppolito obtained six more authorization cards that, together with the previous twenty-three cards, indicated union support by a majority of Royal Coach's employees. Those cards were dated May 11, the day DiPaolo signed and tendered the written voluntary recognition agreement. The evidence presented to the ALJ was inconclusive as to whether the additional six cards were signed by the employees before or after DiPaolo's formal execution of the May 11 agreement.
Within a few days, Eppolito contacted DiPaolo and expressed interest in meeting to commence negotiations for a collective bargaining agreement. DiPaolo responded that his employees had informed him that they no longer wished to be represented by a union. On June 10, Eppolito again attempted to initiate negotiations with DiPaolo, but was rebuffed. On July 16, an attorney for DiPaolo sent a letter to the union indicating that the employees at Royal Coach did not wish to be represented by the union. Accompanying the letter was a petition dated June 1 and signed by forty of the fifty-three employees in the appropriate unit. The petition read:
We, the undersigned employees of Royal Coach Lines Inc. of 798 Nepperhan Ave, Yonkers, N.Y. are very disgruntled with the attempted infiltration of the Union into our company.
We, the undersigned, wish not to be represented by any Union.
There is no claim that the petition was unlawfully obtained by DiPaolo or any other representative of Royal Coach.
On July 21, the union filed the unfair labor practice charge that ultimately led to this litigation. On August 20, following an investigation, the Board's Regional Director issued a complaint alleging that petitioner had failed and refused to bargain with the union following its voluntary recognition, in violation of sections 8(a)(1) and 8(a)(5) of the Act. Following a two day hearing, the ALJ, in an opinion dated April 28, 1983, dismissed the complaint against petitioner. After detailing his factual findings, the ALJ held that "in a refusal to bargain case, the [Board's] General Counsel has the burden of proving the union's majority." Based on the evidence adduced before him, the ALJ concluded that the General Counsel had failed to satisfy that burden. First, the ALJ found that "at the time recognition was demanded, [the union did not] represent a majority of [petitioner's] employees." Second, the evidence was inconclusive as to whether the six authorization cards dated May 11 were signed before or after the execution of the voluntary recognition agreement. The ALJ therefore concluded that petitioner had not been subject to an enforceable duty to bargain and had not committed an unfair labor practice.
On February 5, 1987, nearly four years after the ALJ's decision, a three member panel of the Board reversed the ALJ's dismissal of the complaint against petitioner. Although the Board adopted the ALJ's factual findings, it concluded that he had erroneously construed applicable legal standards. The Board rejected the ALJ's suggestion that the burden of proving the union's majority status in such a case rested upon the General Counsel. Rather, the Board held that "in an 8(a)(5) proceeding such as this, the burden is on the . . . party seeking to escape the bargaining obligation normally arising from voluntary recognition, to adduce affirmative evidence proving the union's lack of majority status at the time of recognition." 282 N.L.R.B. No. 145, at 3 (citing Fertilizer Co. of Texas, 254 N.L.R.B. 1382, 1382 n. 2 (1981); Tri-City Meats, Inc., 231 N.L.R.B. 768, 768 n. 2 (1977); E.L. Rice & Co., 213 N.L.R.B. 746, 748-50 (1974), enf'd, 524 F.2d 1148 (6th Cir. 1975); Moisi & Son Trucking, Inc., 197 N.L.R.B. 198, 198 n.2 (1972)). The Board concluded that "no such evidence was presented here," ...