Boston College Law Review Volume 28 Article 3 Issue 1 Number 1 12-1-1986 1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Labor and Employment Law Commons Recommended Citation 1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law, 28 B.C.L. Rev. 40 (1986), http://lawdigitalcommons.bc.edu/bclr/vol28/iss1/3 This Survey is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 40 BOSTON COLLEGE LAW REVIEW [Vol. 28:25 LABOR RELATIONS LAW 1. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY A, *Specific Evidence Required To Overturn A National Labor Relations Board Election: NLRB v. IDAB, Inc) It is a well-settled rule under federal labor law that a union representation election may be set aside for improper acts not attributable directly to a union only if those acts disrupted the voting procedure or destroyed the atmosphere necessary to the exercise of a free choice in the voting. 2 In a 1981 case, for example, the Fifth Circuit set aside an election where two former employees wore "Vote Teamsters" signs on their hats and an enlarged reproduction of the ballot with an "X" marked in the "Yes" box pinned to their shirts during the voting process Because these former employees stood near the line of voters and repeatedly urged the employees to vote for the union, the court concluded, the required atmosphere of free choice was not present.' A party objecting to an election has the burden of presenting specific evidence that the election results do not reflect the unimpeded choice of the employees. 5 In another 1981 Fifth Circuit case, the court ruled that a simple showing of misconduct was not sufficient to overturn an election. 6 The court held that the employer must present specific evidence showing that the actions interfered with the employees' exercise of free choice to such an extent that the results of the election were materially affected:, The National Labor Relations Board (Board) is responsible for making factual determinations of labor disputes brought before it.' Although the Board's findings may be appealed to a federal court, the Federal court is bound by the Board's factual determinations if substantial evidence in the record supports these determinations. 9 Where the evidence is conflicting and the Board's decision rests on credibility choices, the Board's credibility choices also bind federal courts unless the choices are inherently unreasonable. 1 ° A court, moreover, is not compelled to respect credibility choices that are based on inadequate reasons or upon no reasons at all.' * By Timothy M. Smith, Staff Member, BOSTON COLLEGE LAW REVIEW , I 770 F.2d 991, 120 L.R.R.M. 2329 (11th Cir. 1985). 2 See, e.g., NLRB v. Carroll Contracting & Ready-Mix, Inc., 636 F.2d III, 113, 106 L.R.R.M. 2491, 2493 (5th Cir, 1981); NLRB v. Claxton Mfg., 613 F.2d 1364, 1371, 103 L.R.R.M. 2980, 2986 (5th Cir. 1980). Carroll, 636 F.2d at 112-13, 106 L.R.R.M. at 2493. 4 Id. at 113, 106 L.R.R.M. at 2493. 5 Certainteed Corp. v. NLRB, 714 F.2d 1042, 1060, 114 L.R.R.M. 2541, 2554-55 (11th Cir. 1983). 6 NLRB v. Gulf States Canners, Inc., 634 F.2d 215, 216, 106 L.R.R.M. 2270, 2271 (5th Cir. Unit A), cert. denied, 452 U.S. 906, 107 L.R.R.M. 2504 (1981) (union offered to purchase gasoline for employees who transported other workers to the union meetings). 7 Id, IDAB, 770 F.2d at 996, 120 L.R.R.M. at 2332. 9 29 U.S.C. 160(e) (1982). The relevant language of 29 U.S.C. § 160(e) states, "Nile findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 27 L.R.R.M. 2373, 2378-79 (1951) (court cited language of 29 U.S.C. § 160(e)). " See Mead Corp. v. NLRB, 697 F.2d 1013, 1022, 112 L.R.R.M. 2797, 2803 (11th Cir. 1983). "See ONA Corp. v. NLRB, 729 F.2d 713, 719, 115 L.R.R.M. 3665,3668-69 (11th Cir. 1984) December 1986) ANNUAL SURVEY OF LABOR LAW 41 During the Survey year, in NLRB v. IDAB, Inc.,' 2 the United States Court of Appeals for the Eleventh Circuit held that limited findings of threats and violence, considered cumulatively with limited findings of objectionable electioneering on the part of union representatives, did not warrant setting aside a representation election. IDAB reaffirms the principle that a party objecting to a representation election bears a heavy burden of presenting detailed reasons why the election should be invalidated." Consequently, !DAB reaffirms that an employer must offer specific evidence of acts that disrupt the voting procedures or destroy the proper atmosphere that allows employees to exercise their freedom of choice in the election. In IDAB, the Board petitioned the Eleventh Circuit for enforcement of a Board order directing IDAB Inc. (the Company) to recognize and bargain with the Interna- tional Association of Machinists and Aerospace Workers (the Union).' 4 In November of 1979, the Board had conducted an election among the Company's employees." After the election, which favored adopting the Union, the Company filed timely objections, claiming that the Union had denied employees free choice in the election because of improper electioneering and threats and acts of violence.'" Subsequently, the Board conducted an ex parte investigation of the matter and concluded that the Company's objections were without merit." To secure judicial review of the Union's alleged improper acts, the Company refused to bargain with the Union.'" As a result, the Union brought an unfair labor practice charge against the Company alleging that the Company had violated two sections of the National Labor Relations Act (the Act) by refusing to recognize and bargain with the Union.'" The Board granted the Union's motion for summary judgment and ordered the Company to bargain with the Union. 20 The Company sought review of the Board's order in the Fifth Circuit. 2 ' The Fifth Circuit ruled that the Company was entitled to an evidentiary hearing on its allegations of Union misconduct, and thus the Board's order should not be enforced." Accordingly, the matter was remanded for a hearing." (The ONA court cited NLRB v. Moore Business Forms, 574 F.2d 835, 844, where the court had refused to uphold an administrative law judge's finding because it was based on an "invalid reason of law."). 12 770 F.2d 991, 1000-01, 120 L.R.R.M. 2329, 2336 (11th Cir. 1985). 13 Id. at 998-1001, 120 L.R.R.M. at 2334-36, '4 1d. at 992-93, 120 L.R.R.M. at 2329. ' 5 Id. at 993, 120 L.R.R.M. at 2329. '6 /d. at 993, 120 L.R.R.M. at 2329-30. " Id. at 993, 120 L.R.R.M. at 2330. 18 Id. '9 Id, The Union alleged that the Company had violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. 158(a)( I) and (5). Id. Section 158(a)(1) states, "It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 157 of this title;" and § 158 (a)(5) states, It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." so IDAB, 770 F.2d at 993, 120 L.R.R.M. at 2330. 21 Id. As a result of the split of the Fifth Circuit into the Fifth and Eleventh Circuits, the present IDAB case was decided ultimately in the Eleventh Circuit. 22 Id. 25 Id. (citing EDS-IDAB, Inc. v. NLRB, 666 F.2d 971, 109 L.R.R.M. 2653 (5th Cir. Unit B 1982)). At the time of the Union election, the Company's name was EDS-IDAB, Inc. The name was changed subsequently to IDAB, Inc. IDAB, 770 F.2d at 992 n.1, 120 L.R.R.M. at 2329 n.l. 42 BOSTON COLLEGE LAW REVIEW [Vol. 28:25 A hearing was held before an administrative law judge (Aq) in July and September of 1982.24 At the hearing, the Company alleged that the Union had established an organizing committee consisting of employees Victor Ugarte, Al Gonzales, Louis Jorge, and Francisco Rodriguez. 25 The Company stated that shortly before the election Rod- riguez threatened pro-Company employee Contreras with a gun. 26 In addition, the COmpany asserted, Jorge punched Contreras in the eye." Moreover, the Company alleged that Jorge twice threatened to damage employee Leon's car if Leon did not vote for the Union.28 During the campaign, the tires of pro-Company employees were van- dalized. 28 Rumors of violence or threats of violence by pro-Union employees were circulated widely." The Company further alleged that on the day of the election, numerous incidents of improper electioneering took place.