On Application for Enforcement of an Order of The National Relations Board.
Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Christensen, Senior District Judge.*fn*
The NLRB has applied to this court pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its October 26, 1972 order issued against the respondent Urban Telephone Corporation [hereinafter referred to as the company]. The decision is reported at 199 NLRB No. 119.
The company is a Wisconsin corporation which provides telephone service. The union, International Brotherhood of Electrical Workers, AFL-CIO, petitioned the NLRB for certification as the bargaining representative for a stipulated unit of employees. On April 16, 1971, the NLRB conducted a secret ballot election. Of the thirty-three eligible voters, seventeen cast ballots in favor of the union and fifteen voted against. The company filed three objections to conduct affecting the election results:
(1) During the period before the election an individual acting on behalf of petitioner intimidated, threatened and/or coerced an eligible voter. Such conduct thereby unfairly affected the results of the election.
(2) On the day of the election a Union representative engaged in last minute electioneering directed toward no less than two eligible voters in the relative vicinity of the polls shortly before the opening thereof. Such conduct unfairly affected the results of the election.
(3) During the twenty-four hour period before the holding of the election, a Union representative met on company time with eligible voters in violation of the Board's Peerless Plywood rule. [107 NLRB 427]
The Regional Director after an administrative investigation recommended that the second and third objections be overruled and that a hearing be held on the company's first objection. The Board adopted those recommendations. A hearing officer then conducted a hearing on the first objection, found it to be without merit, and recommended that it be overruled and that a certification representative be issued to the union. On April 3, 1972, the Board, with one member dissenting, overruled the objections to the hearing officer's report filed by the company and adopted his findings and recommendations and certified the union as the exclusive bargaining representative. 196 NLRB No. 6. The company refused to bargain with the union and thereafter the Board's General Counsel issued a complaint that the company had committed unfair labor practices in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to bargain. The company answered and raised the same objections as it had previously raised. The Board found an unlawful refusal to bargain and ordered the company to bargain with the union upon request and to post appropriate notices. 199 NLRB No. 35. This application for enforcement followed.
The company raises three issues: (1) the Board failed to consider relevant evidence dealing with the second and third objections and denied due process of law to the company by refusing to order a hearing on these objections; (2) the Board abused its discretion by holding that the threats and coercion referred to in the first objection did not warrant setting aside the election; and (3) the Board failed to consider the combined effect of the acts alleged in the three objections.
Because of our resolution of the second issue, it is unnecessary to reach the other issues. The company alleged that George Rodriguez, an employee, had threatened on a number of occasions prior to the election to harm other employees. The conclusions of the hearing officer which were adopted by the Board were: (1) that Rodriguez was not an agent of the union and his statements therefore, were not attributable to the union, and (2) that the threats did not create a general atmosphere of fear and reprisal rendering the free choice of representatives impossible.
Rodriguez had been employed by the company for over three years as a lineman and repairman. He is physically large, one of the largest men in the bargaining unit. He had a reputation for fighting, although the company did not know of any problems that he had with fellow employees.
Rodriguez initiated the contact with the union and asked the union organizer, Marvin Devries, to speak to the employees about the union. Devries and the union business manager, De Wayne Wruck, testified that Rodriguez did not hold any official position in the union and was not authorized to speak on its behalf. He was, however, one of three men selected by the union to be a "contact man." As "contact man" he received no benefits from the union but served on a volunteer basis. He acted as a liaison between the employees and the union in order to relay information. At the request of other employees, the union replaced Rodriguez as contact man shortly before the election. Rodriguez did ask the company for permission to speak on behalf of the union at one meeting of the employees in order to invite them to attend a later scheduled union meeting. But Devries and James Conway, the union lawyer, had informed the employees at one of the meetings that only they were authorized to speak on behalf of the union.
Based on Rodriguez ' affidavit and the testimony of John Schafer, the company vice president, which he found to be truthful, the hearing officer found four incidents ...