The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 97-1425
COCA-COLA BOTTLING COMPANY
CONSOLIDATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(9-CA-34465)
Argued: October 1, 1997
Decided: December 29, 1997
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
_________________________________________________________________
Enforcement granted by published opinion. Judge Murnaghan wrote
the opinion, in which Judge Niemeyer and Senior Judge Magill
joined.
_________________________________________________________________
COUNSEL
ARGUED: Joan Elizabeth Hoyte, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Petitioner. Michael Wade
Bishop, EDWARDS, BALLARD, BISHOP, STURM, CLARK &
KEIM, P.A., Spartanburg, South Carolina, for Respondent. ON
BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Asso-
ciate General Counsel, Aileen A. Armstrong, Deputy Associate Gen-
eral Counsel, Peter Winkler, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. S.
Clay Keim, BALLARD, BISHOP, STURM, CLARK & KEIM, P.A.,
Spartanburg, South Carolina, for Respondent.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
In this proceeding, we confront a challenge to the National Labor
Relations Board's certification of the Chauffeurs, Teamsters and
Helpers, Local Union No. 175, as the exclusive bargaining representa-
tive of the employees of Coca-Cola's Logan, West Virginia soft-drink
distribution facility. A Board-certified election was held on August 2,
1996, and the Union prevailed by a vote of eighteen to nine. The
Company filed timely objections to the election, alleging that the
Union had coerced employees to vote for it by granting and promising
benefits conditioned upon a Union victory and by creating an atmo-
sphere of fear and intimidation in the pre-election environment. The
hearing officer considered these contentions and rejected them. The
Board adopted the hearing officer's recommendations and, on Sep-
tember 30, 1996, issued its Decision and Certification of Representa-
tion, thereby certifying the Union as exclusive bargaining
representative.
In an effort to obtain judicial review of the Board's certification,
the Company refused to bargain with the Union. Thereafter, the
Union filed charges pursuant to §§ 8(a)(5) and 8(a)(1) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (1988). In its answer
to this complaint, the Company admitted that it had refused to bar-
gain, but challenged the validity of the Board's decision to certify the
Union. The General Counsel moved for summary judgment and, on
January 27, 1997, the Board granted the motion and issued an order
requiring the Company to bargain. Pursuant to 29 U.S.C. § 160(e), the
Board petitions this Court for enforcement. Because we conclude that
the Union was properly certified, we hereby grant enforcement.
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I.
The Company operates a soft drink distribution facility in Logan,
West Virginia. On June 1, 1996, the Union filed a petition for a
Board-certified representation election. On June 26, 1996, employee
David "Randy" Atkins sent a letter to the Company's Plant Manager,
Luther Burdette. In the letter, Atkins identified sixteen employees as
the "Internal Organizing Committee" for the union organization
effort. According to Atkins, his purpose in sending the letter was to
protect the sixteen named employees from retaliation by the Company
for any of their union organizing activities.
In July 1996, employees requested that the Union provide them
with T-shirts and other items of pro-union paraphernalia. The Union
complied and, on June 30, 1996, made T-shirts available to employ-
ees following a union organization meeting. The shirts were placed
in a box at the back of the meeting room and at the end of the meeting
employees were told they could go to the back of the room and take
a shirt if they so desired. The T-shirts were supplied in two varieties,
one with a Teamsters logo on the front and the other with the logo
and the words "Bad Boy" stenciled on the back. The shirts ranged in
value from $6.10 to $7.00 each.
At the same meeting on June 30, Union members from the local
chapter answered questions and provided employees with information
regarding various issues, including employee pension plans. The
details of what employees were told regarding pension benefits is a
matter of dispute. The Company claims employees were promised ten
years of advanced credit toward a union pension plan if the Union
won the election. The Union denies that such promises were made.
On July 6, 1996, union organizers held another meeting. Among
other things which occurred during this meeting, one thing is relevant
to this appeal. Employee Kendall Dingess attended this meeting and
brought with him former employee Bill Atkins (no relation to Randy
Atkins), who had previously worked for Coca-Cola at a different
facility. Dingess asked Bill Atkins to speak to employees about how
Atkins was treated when he was at the Company, and why he
believed Coke employees would be better off with a union. Atkins's
remarks were brief, and there are differing stories as to what Atkins
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actually said. The Company claims Atkins told employees he had
been terminated from Coke for supporting the union in a prior elec-
tion effort. The Union denies that Atkins made any such remark.
During the election, some union supporters experienced a fear of
losing their jobs if the Union lost the election. They believed the
Company might retaliate against them for having supported the
Union. Some employees discussed these fears with their co-workers.
II.
Our consideration of the Board's enforcement petition is governed
by well-established principles of law. Congress has entrusted the
NLRB with broad discretion to establish procedures and safeguards
"to insure the fair and free choice of bargaining representatives by
employees." See N.L.R.B. v. A.J. Tower Co. , 329 U.S. 324, 330
(1946). As a result, this Court treats the outcome of a Board-certified
election as presumptively valid. See N.L.R.B. v. VSA, Inc., 24 F.3d
588, 591 (4th Cir.), cert. denied, 513 U.S. 1041 (1994) (citations
omitted). In seeking to have an election set aside, the objecting party
bears a "heavy burden." See N.L.R.B. v. Herbert Halperin Distrib.
Corp., 826 F.2d 287, 290 (4th Cir. 1987). To succeed, it must be
shown by specific evidence that (1) the alleged acts did in fact occur
and (2) such acts "sufficiently inhibited the free choice of employees"
so as to affect materially the results of the election. N.L.R.B. v. Hydro-
therm, Inc., 824 F.2d 332, 334 (4th Cir. 1987) (quoting N.L.R.B. v.
Handy Hardware Wholesale, Inc., 542 F.2d 935, 938 (5th Cir. 1976),
cert. denied, 431 U.S. 954 (1977)).
In evaluating alleged misconduct to determine whether the requi-
site prejudice has occurred, this Court is mindful of the real world
environment in which an election takes place. Although the Board
strives to maintain "laboratory conditions" in elections, see General
Shoe Corp., 77 N.L.R.B. 124, 127 (1948), "clinical asepsis is an unat-
tainable goal," VSA, 24 F.3d at 595 (citations omitted). An election
is by its nature a rough and tumble affair, and a certain amount of "ex-
aggerations, hyperbole, and appeals to emotions" are to be expected.
Id. at 595 (quoting Schneider Mills, Inc. v. N.L.R.B., 390 F.2d 375,
379 (4th Cir. 1968) (en banc)).
4
Given the complexity of the employment relationship, determining
whether certain conduct is coercive "require[s] a quality and degree
of expertise uniquely within the domain of the Board." Hydrotherm,
824 F.2d at 334. Where, as here, the Board has held a hearing on a
party's election objections, on appeal the Board's findings of fact are
"conclusive" if supported by substantial evidence. See National Labor
Relations Act, 29 U.S.C. § 160(e). This Court will not substitute for
the Board its judgment regarding factual findings, especially with
respect to matters bearing on witness credibility. See Universal Cam-
era Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951); N.L.R.B. v. Air
Prods. & Chems., Inc., 717 F.2d 141, 145 (4th Cir. 1983). The ulti-
mate determination of an election's validity rests within the "sound
discretion of the Board," and this Court will reverse only upon a find-
ing of abuse of discretion. See N.L.R.B. v. Manufacturer's Packaging
Co., 645 F.2d 223, 225 (4th Cir. 1981) (citations omitted). Therefore,
"[i]f the Board's decision was reasonable and based on substantial
evidence in the record considered as a whole, our inquiry is at an
end." Hydrotherm, 824 F.2d at 334.
III.
In its opposition to enforcement of the Board's order, the Company
presents three grounds on which it contends the election must be set
aside. First, the Company argues that the Union engaged in coercion
by encouraging employees to believe they would be terminated by the
Company for their pro-union activities if the Union lost the election.
According to the Company, the Union "regularly and consistently
threatened employees" by representing to them that employees who
supported a previous union organization effort had been discharged
because of their pro-union activities; that everyone who supported the
Union would be fired if the Company won the election; and that the
only way to preserve employment with the Company was to make
sure the Union won the election. These threats, the Company main-
tains, spread fear and uncertainty among employees, an atmosphere
which the Union allegedly exacerbated by sending a letter to the
Company's management identifying union supporters.
The Board rejected the Company's allegations on this point, and
we agree. In the hearing below, the Company called eleven employ-
ees as witnesses. Not a single witness corroborated the employer's
5
allegations that anyone connected with the Union-- either directly or
in a representative capacity -- engaged in the sort of conduct the
Company alleges. While it is true that some witnesses testified that
they experienced fear of losing their jobs as a result of their support
of the Union, these employees testified that their fears were based on
their own perceptions of how companies sometimes react to union
organizing efforts and their own opinions regarding why some former
union supporters were no longer with the Company. Not a single
employee testified to hearing rumors that pro-union employees would
be terminated or, significantly, that conduct on the part of the Union
was in any way responsible for creating an atmosphere in which
employees felt compelled to vote for the Union.
The Company relies heavily on the allegation that former Coke
employee, Bill Atkins, who spoke at a gathering of pro-union employ-
ees, told those at the gathering that he was fired for supporting a pre-
vious union organization effort. Yet, there is no evidence in the record
that Bill Atkins, who attended the meeting at the request of employee
Kendall Dingess, told anyone other than Dingess that Atkins believed
he was terminated for his support of the union. Not a single employee
who attended the meeting testified to having heard Bill Atkins say
that he was terminated from Coca-Cola or why such a termination
may have occurred. Even Dingess's own testimony is ambiguous as
to whether Atkins stated his opinion regarding the reason for his ter-
mination to Dingess in private or to the group of employees gathered
at the meeting. Furthermore, the Company has provided no evidence
that any statement which may have been made by Bill Atkins later
became the subject of rumors, let alone fear, among employees.
We agree with the Board that the Company has failed to carry its
burden of establishing, as a factual matter, that the alleged misconduct
occurred. We therefore decline to deny enforcement of the Board's
order on this ground.
IV.
The Company's next objection is that the Union, by distributing T-
shirts at an employee meeting one month before the election, made
employees feel obligated to vote for the Union. Although the Union
6
acknowledges that it distributed T-shirts, it denies that this activity
had any prejudicial effect on the outcome of the election.
The proper starting point for a case of this nature is the Board's
decision in Wagner Electric Corp., 167 N.L.R.B. 532 (1967). In
Wagner, the union gave employees a five-hundred dollar life-
insurance voucher in an effort to influence the outcome of the elec-
tion. The Board observed that this pre-election grant of benefits
resulted in the "enhancement of the employees' economic position"
and thus was "akin to an employer's grant of a wage increase in antic-
ipation of a representation election . . . [in that it] subjects the donees
to a constraint to vote for the donor union." Id. at 533.
Although Wagner stands for the proposition that certain pre-
election grants of economic benefit are inappropriate, the Board has
carved out a niche for grants of benefit which, although of some eco-
nomic value, are intended as mere propaganda and do not threaten to
create a sense of obligation on the part of employees. The paradigm
example of this is the distribution of pro-union buttons and bumper
stickers, which cost the union something to distribute, but which the
Board has never held to be inappropriate. See R.L. White Co., Inc.,
262 N.L.R.B. 575 (1982).
In R.L. White, the union distributed T-shirts as part of its pre-
election effort to generate support among employees. See id. at 576.
The Board rejected the company's demand to set aside the election.
See id. In the Board's view, the distribution of inexpensive T-shirts
was part and parcel of a union's campaign effort and was unlikely to
create a sense of obligation among employees:
A party to an election often gives away T-shirts as part of
its campaign propaganda in an attempt to generate open sup-
port among the employees for the party. As such, the distri-
bution of T-shirts is no different than the distribution of
buttons, stickers, or other items bearing a message or insig-
nia. A T-shirt has no intrinsic value sufficient to necessitate
our treating it differently than other types of campaign pro-
paganda, which we do not find objectionable or coercive.
Id. Although R.L White might appear to suggest that economic value
alone is dispositive, later decisions of the Board have indicated that
7
this is not the case. Instead, the Board has rather consistently applied
a totality of the circumstances approach, which in addition to the
value of the benefit conferred takes into account various other factors,
such as the timing of the benefit, the number of employees to whom
the benefit is granted, and the likelihood of the benefit being inter-
preted as a reward or inducement to vote for the union. See, e.g.,
Owens-Illinois, Inc., 271 N.L.R.B. 1235 (1984); Nu-Skin Int'l, Inc.,
307 N.L.R.B. 223 (1992).
The totality of the circumstances approach is exemplified by the
holding in Owens-Illinois. There, a union organizer handed out on
election day approximately twenty-five jackets with union insignia to
employees who came to his room at the Ramada Inn between the first
and second voting sessions. See id. at 1235. Evidence showed that the
jackets were valued at $16 a piece and that at least five or six employ-
ees who received a jacket had not yet voted in the election. See id.
The Board ordered the election to be set aside. See id. In the Board's
view, the totality of the circumstances suggested the potential for
undue influence on the free choice of voting employees:
[T]hese jackets were not given away during the preelection
campaign but on election day itself; distributed as they were
between voting sessions, they could well have appeared to
the electorate as a reward for those who had voted for the
[union] and as an inducement for those who had not yet
voted to do so in the [union's] favor. . . .[Moreover,] the
value of the jackets given away here far exceeds that of the
items considered in R.L. White. Given all the circumstances
of this case, we find the [Union's] distribution of these jack-
ets was objectionable conduct.
Id. at 1235-36. These same principles were applied in Nu Skin Int'l,
Inc., 307 N.L.R.B. 223 (1992), where the Board approved of the
union's distribution of $4 "Union Yes" t-shirts at a union-hosted pic-
nic the day before the election.
The principles elucidated in Owens and Nu Skin provide for ready
disposition of the case at bar. For starters, the T-shirts distributed by
the Union in the present case were of an essentially nominal value.
Although the $6-$7 value of each shirt is slightly more than the value
8
of the T-shirts distributed in Nu Skin, it is nevertheless substantially
less than the $16 value of the jackets the Board rejected in Owens.
Next, the circumstances surrounding the distribution of the T-shirts
militate against a finding of undue influence. Unlike in Owens, where
the jackets were distributed on election day between voting sessions,
in the present case the T-shirts were offered to employees at a meet-
ing which occurred more than one month prior to the date of the elec-
tion. This substantially reduced any danger that employees would feel
a sense of obligation to vote for the Union.
Additionally, the T-shirts were not distributed to Coke employees
in general, but were brought to the meeting at the request of employ-
ees who, all except for one, had already declared themselves to be the
"Internal Organizing Committee" for the union representation effort.
Finally, the Union placed no pressure on employees to take a T-shirt
or to make a pledge to support the Union in the election. Instead, a
box of T-shirts was placed at the back of the room and employees
could take a shirt without having to make any representation of sup-
port for the Union.
In light of all these facts, we conclude that the distribution of T-
shirts in this case was entirely appropriate, and the Company's
request to set aside the election on this ground is denied.
V.
The Company's final objection concerns promises that were alleg-
edly made by the Union regarding benefits to be received if the Union
won the election. According to the Company, during the pre-election
campaign Union officials attempted to "bribe" employees by "pur-
chasing their vote[s]" with a promise that a Union victory in the elec-
tion would automatically entitle them to participate in a union pension
plan with ten years of credit advanced toward retirement.
It is well-settled that a union may not make pre-election promises
of benefits to employees contingent on a union victory in the election.
See Crestwood of Stockton, 234 N.L.R.B. 1097 (1978). In the instant
case, the Board rejected as a factual matter the Company's claim that
Union officials made the promises in question. We agree. Not a single
employee among the eleven called by the Company to testify at the
9
hearing offered any evidence to support the Company's claim. Quite
the opposite, each witness who testified on the matter stated that
Union representatives had merely described the various pension bene-
fits that might be obtainable, and had cautioned employees that pen-
sion benefits were not guaranteed and were subject to negotiation
with the Company.
The only evidence in the record that even arguably supports the
Company's position is the affidavit of employee Doug Diamond, in
which Diamond swore that Union officials attending an organization
meeting informed employees that they would be entitled automati-
cally to receive a ten year credit toward a union pension plan if the
Union were elected. However, when called to testify at the hearing,
Diamond wholeheartedly contradicted his affidavit and testified that
to his knowledge no Union official had ever made promises concern-
ing benefits under a union pension plan. Given this testimony, we
agree with the Board's decision to give "little weight" to Diamond's
affidavit. The Board was, therefore, justified in refusing to set aside
the election on this ground.
VI.
Accordingly, we cannot conclude that the Board's refusal to over-
turn the election was an abuse of discretion. We hold that the election
was valid, that the Company had a duty to bargain with the Union,
and that the Company's refusal to bargain constitutes an unfair labor
practice. We therefore grant enforcement of the Board's order.
ENFORCEMENT GRANTED
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