Petition for Review and Cross-Application for Enforcement of a National Labor Relations Board Order. No. 25-CA-24220.
Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.
The production and maintenance employees at the Uniroyal Technology Corporation ("Uniroyal") plant in Warsaw, Indiana, in an election held on February 10, 1995, voted to have the United Paperworkers' International Union ("Union") represent them as their exclusive bargaining representative. Uniroyal challenged the election. It alleged that the employees were denied a free choice because the Union had engaged in impermissible conduct by improperly injecting religious issues into the campaign and by materially misrepresenting other important campaign issues. The National Labor Relations Board ("NLRB" or "Board"), on July 20, 1995, adopted the hearing officer's recommendations, overruled Uniroyal's objections, and certified the election. Following the Board's certification, Uniroyal refused to bargain with the Union. The Board then determined that the employer's refusal to bargain was an unfair labor practice and ordered Uniroyal to bargain in good faith with the Union. Uniroyal now petitions for review of the NLRB order; the Board cross-applies for enforcement of its order. Because the Board's finding of an unfair labor practice is supported by substantial evidence in the record, considered as a whole, we enforce the Board's order and deny Uniroyal's cross-petition.
Uniroyal's plant in Warsaw, Indiana manufactures sheet plastic that is eventually used in products such as attache cases and medical equipment. The facility employs approximately 130 hourly employees and 40 salaried employees. In early December 1994, the Union began an attempt to organize the production and maintenance workers at the plant and held several organizational meetings for employees interested in helping to organize the facility. Alfredo "Al" Lozano, an extruder operator on the midnight shift at the plant, attended one of the organizational meetings and volunteered to become a member of the Union's in-plant organizing committee. *fn1
Beginning in the early part of December, Mr. Lozano attempted to get other employees to sign union authorization cards and answered questions about the Union. At some point in early December, Mr. Lozano approached a fellow extruder operator and friend, Tim Ellis, and sought to get him to sign a union authorization card. Mr. Ellis, who worked next to Mr. Lozano on the midnight shift, indicated that he was unsure whether he was interested in signing the card. Mr. Lozano retorted that unless he, Mr. Ellis, were to stand up against the company and support the Union, he would be the same kind of person who would end up taking the "Mark of the Beast" in the last days--the days leading up to judgment day. Mr. Ellis testified that this comment hurt his feelings. The following day, Mr. Lozano apologized to Mr. Ellis for the comment he had made.
On December 22, 1994, the Union filed a petition with the NLRB seeking to represent the maintenance and production employees at the Warsaw plant. On February 10, 1995, the Board conducted an election by secret ballot at the facility, resulting in 62 of the valid 122 votes in favor of the Union and 60 in favor of the employer. Uniroyal challenged the results of the election. It alleged that the employees had been intimidated in the exercise of their Section 7 rights *fn2 by the Union's use of impermissible religious appeals and threats and by the Union's material misrepresentations during the course of the campaign. The employer alleged that the conversation between Mr. Lozano and Mr. Ellis took place after the petition had been filed and that the "Mark of the Beast" comment circulated among the employees throughout the campaign, infecting the conditions necessary for a fair representation election. Uniroyal also complained that the Union built upon the "Mark of the Beast" comment and further injected religion into the campaign in two of its campaign newsletters. In one of these newsletters, an article entitled "Man of God offers advice" recounts the advice a Protestant clergyman gave to a group of young men trying to decide whether to join a union. The other newsletter refers to Uniroyal's outside legal counsel as the "devil's number one draft pick." These newsletters were distributed several weeks before the election--more than a month after the Lozano/Ellis conversation occurred. Finally, Uniroyal also challenged the election on the basis of several union misrepresentations regarding the company dental, vision and pension plans. In each case, the Union corrected these mischaracterizations.
A hearing officer of the Board conducted a two-day hearing during which the employer's objections to the election were considered. The hearing officer heard testimony from sixteen witnesses. On May 12, 1995, he issued his Report on Objections to the Election with Findings of Fact and Recommendations, which the Board adopted. The NLRB certified the Union as the exclusive bargaining agent on July 20, 1995.
In evaluating the election atmosphere, the NLRB determined that the critical time period was between December 22, 1994, the day the election petition was filed, and February 10, 1995, the day of the election. See Ideal Elec. & Mfg. Co., 134 NLRB 1275, 1278 (1961). The Board found that the alleged conversation between Mr. Lozano and Mr. Ellis did occur, as Mr. Ellis testified, and that it occurred in early December--several weeks before the Union's election petition was filed. The Board also found that Mr. Lozano apologized to Mr. Ellis the following day and that the apology appeased Mr. Ellis. *fn3 The Board concluded that Mr. Lozano was not an agent of the Union and that the Union's two allegedly religious comments were unrelated to Mr. Lozano's comment. The Board further determined that, with respect to any circulation of Mr. Lozano's comment among the employees during the critical time period, the comment was nothing more than a matter of casual conversation. Finally, the Board also found that the Union had corrected all the misrepresentations it had made. Moreover, the NLRB, relying on Midland Nat'l Life Ins. Co., 263 NLRB 127, 133 (1982), held that the falsity of the campaign statements was not a basis for setting aside the election. *fn4 In short, the Board decided that none of this pre-petition or campaign conduct was sufficiently objectionable to set aside the election.
After the Board certified the Union, Uniroyal continued to refuse to bargain. On September 25, 1995, the Union filed a complaint against Uniroyal, alleging the commission of an unfair labor practice by refusing to bargain with the certified Union. See National Labor Relations Act (the "NLRA" or "Act"), 29 U.S.C. sec. 158(a)(1), (5). The General Counsel, on October 6, 1995, issued a complaint. The Board issued an order transferring the proceeding to itself. The NLRB found that the company had not offered any new evidence that would require it to re-examine its representation decision. The Board, therefore, granted the General Counsel's motion for summary judgment and ordered the employer to cease and desist from its unfair labor practices, to ...