NLRB v. Maryland Ambulance

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

No. 98-2592

MARYLAND AMBULANCE SERVICES,

INCORPORATED,

Respondent.

On Application for Enforcement of an Order

of the National Labor Relations Board.

(5-CA-27611)

Argued: May 6, 1999

Decided: September 23, 1999

Before MURNAGHAN, WILLIAMS, and MICHAEL,

Circuit Judges.

_________________________________________________________________

Enforcement granted by published opinion. Judge Murnaghan wrote

the opinion, in which Judge Williams and Judge Michael joined.

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COUNSEL

ARGUED: J. Michael McGuire, SHAWE & ROSENTHAL, Balti-

more, Maryland, for Petitioner. Richard A. Cohen, Senior Attorney,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Respondent. ON BRIEF: R. Michael Smith, SHAWE & ROSEN-

THAL, Baltimore, Maryland, for Petitioner. Frederick L. Feinstein,

General Counsel, Linda Sher, Associate General Counsel, John D.

Burgoyne, Acting Deputy Associate General Counsel, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

The National Labor Relations Board ("Board") found that the

Maryland Ambulance Service, Inc. ("MAS" or"Company") violated

Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act

("NLRA"), 29 U.S.C.A. §§ 158(a)(1),(5), by refusing to bargain with

Drivers, Chauffeurs, and Helpers Local Union No. 639 ("Union").

After an election and the Board's review of objections to the election,

the Board certified the Union as the exclusive bargaining representa-

tive of an appropriate unit of the Company's employees. The Com-

pany refused to bargain, arguing that the Board erred in refusing to

recognize the votes of three employees and in overruling the Compa-

ny's objections regarding alleged misconduct by Union supporters.

The Board now seeks enforcement of its Order. Because we find no

abuse of discretion with respect to the Board's decision regarding the

challenged votes and other election objections, we grant enforcement

of the Order requiring MAS to recognize and bargain with the Union.

I.

The Maryland Ambulance Service operates its business from a

facility located in Columbia, Maryland. On June 5, 1997, the Union

filed a representation petition with the Board, seeking certification as

the exclusive collective-bargaining representative of a unit consisting

of employees at that facility. On June 20, the parties entered into a

stipulated election agreement ("Stipulation" or "Stipulation Agree-

ment"), specifying which job classifications would compose the bar-

gaining unit1 and designating the date, time, and place for a Board

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1 Under the Stipulation, the unit included "[a]ll full-time and regular

part-time paramedics, EMT drivers, EMT attendants, nurses, field super-

visors, maintenance leader, make ready officers, detailer, call intakers,

dispatch supervisors, public relations officers, special project assistant

and administrative assistants employed by the employer at its Columbia,

Maryland location . . . ."

2

election. The Stipulation also limited voting eligibility to those

employees "employed during the payroll period[ending June 8] . . .

including employees who did not work during that period because

they were ill, on vacation, or temporarily laid off, employees engaged

in an economic strike which commenced less than 12 months before

the election date and who retained their status as such during the eligi-

bility period and their replacements, and employees in the military

services of the United States who appear in person at the polls."

The Board conducted a secret-ballot election at the Company's

facility on July 23 and 24, 1997. The tally of the ballots indicated that

forty-three employees voted in favor of union representation, while

thirty-eight employees cast their votes against representation. Ten bal-

lots were challenged, some by the Union and others by the Company.

In addition, each party filed timely objections to the election, charging

the other with having engaged in conduct that interfered with employ-

ees' free choice. The Union alleged that MAS (1) omitted names from

the list of employees eligible to vote; (2) unlawfully promised

employees a chance to win $350 worth of gasoline for viewing an

anti-union film and polled those employees who watched the film; (3)

unlawfully coerced and polled employees by running a raffle for a

television during the hours the polls were open; and (4) conferred an

unlawful benefit by providing each eligible employee a free ticket for

the television raffle. On the other hand, MAS alleged that the Union,

through its agents and MAS employees, (1) improperly granted bene-

fits to employees during the days immediately preceding the election

and on election day by providing free meals and alcoholic beverages;

(2) intimidated and coerced employees with direct threats, by destroy-

ing company property, and by damaging employees' personal prop-

erty; and (3) improperly offered to reduce or waive initiation fees for

those individuals that signed union authorization cards and publicly

demonstrated their support for the Union.

On August 6, 1997, the Regional Director issued a report, in which

he directed that a hearing be held to resolve the issues raised by the

challenged ballots and the parties' election objections. Following the

hearing, the Hearing Officer issued a report in which he recom-

mended that both parties' election objections be overruled, that the

challenges to five ballots be sustained, and that the challenges to the

remaining five ballots be overruled. The Hearing Officer directed that

3

the ballots subject to the overruled challenges be opened and counted.

The Company filed timely exceptions to the report, arguing that the

Hearing Officer erred in sustaining the Union's challenges to three

ballots and in recommending that four of the Company's election

objections be overruled.

On January 16, 1998, the Board issued a decision in which it

adopted the Hearing Officer's findings and recommendations. The

Board's Regional Director opened and counted the ballots and issued

a revised tally indicating that the Union had won the election by a

count of forty-four to forty-two votes. Based upon the revised tally,

the Regional Director certified the Union as the exclusive bargaining

representative.

Despite the Union's certification, the Company has refused the

Union's request to bargain. The Union filed an unfair labor practice

charge against MAS, which prompted the Regional Director to issue

a complaint alleging that MAS's refusal to bargain violated Sections

8(a)(1) and 8(a)(5) of the NLRA.2 29 U.S.C.A. §§ 158(a)(1), (5). The

Company filed an answer to the complaint, admitting its refusal to

bargain and contesting the validity of the certification of the Union on

the same grounds argued before the Board in the representation pro-

ceeding.

The Board's General Counsel filed a motion for summary judg-

ment, which the Board granted. The Board found that all the issues

raised by the Company in the unfair labor practice proceeding were,

or could have been, litigated in the underlying representation proceed-

ing. Since the Company had not offered any newly discovered or pre-

viously unavailable evidence that would warrant a reexamination of

the Union's certification, the Board found that the Company's refusal

to bargain with the Union violated Sections 8(a)(1) and 8(a)(5). The

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2 Section 8(a)(1) provides that it is an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in section 157 of th[e] title." 29 U.S.C.A.

§ 158(a)(1). Section 8(a)(5) makes it unlawful for an employer "to refuse

to bargain collectively with the representatives of his employees, subject

to the provisions of section 159(a) of th[e] title." 29 U.S.C.A.

§ 158(a)(5).

4

Board ordered the Company to cease and desist from interfering with,

restraining, or coercing employees in the exercise of their statutory

rights. The Board further required the Company, upon request, to bar-

gain with the Union and, if an understanding is reached, to embody

the understanding in a signed agreement. The Board now seeks

enforcement of its Order.

II.

"Congress has entrusted the Board with a wide degree of discretion

in establishing the procedure and safeguards necessary to insure the

fair and free choice of bargaining representatives by employees."

NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946); see also NLRB

v. Waterman Steamship Corp., 309 U.S. 206, 226 (1940) ("The con-

trol of the election proceedings, and the determination of the steps

necessary to conduct [an] election fairly were matters which Congress

entrusted to the Board alone."). With this congressional objective in

mind, this Court has found the results of a Board-supervised represen-

tation election to be presumptively valid. See NLRB v. VSA, Inc., 24

F.3d 588, 592 (4th Cir.), cert. denied, 513 U.S. 1041 (1994). "[I]f the

Board's certification decision is reasonable and based on substantial

evidence in the record as a whole," id., and is consistent with the

NLRA, we are obliged to affirm the decision. See Glenmark Asso-

ciates, Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998); see also 29

U.S.C.A. § 160(e) ("The findings of the Board with respect to ques-

tions of fact if supported by substantial evidence on the record consid-

ered as a whole shall be conclusive."). We will overturn a

representation election only where the Board has clearly abused its

discretion. See VSA, Inc., 24 F.3d at 592.

After the election, the Union challenged the votes of three employ-

ees, Charles Lookingbill, Brian Nicoli and Erica Smith, on the ground

that they were not "employed" by MAS on June 8, 1997, the eligibil-

ity cut-off date set by the parties' Stipulation Agreement. The Board

sustained the Union's challenges, which MAS maintains was errone-

ous.

The Board has long required that, in order to be eligible to vote in

a representation election, an employee "must be both `hired and work-

ing' on the eligibility date." NLRB v. Family Heritage Home-Beaver

5

Dam, Inc., 491 F.2d 347, 349 (7th Cir. 1974); see also NLRB v. Dal-

ton Sheet Metal Co., Inc., 472 F.2d 257, 258 (5th Cir. 1973) (noting

that it is well-settled that "an individual must be employed and work-

ing on the established eligibility date in order to be eligible to vote"

in a union election). There must be an "`actual performance of bar-

gaining unit work'" during the specified period, not merely "`partici-

pation in training, orientation or other preliminaries.'" NLRB v. Tom

Wood Datsun, Inc., 767 F.2d 350, 352 (7th Cir. 1985). The Board's

"actual work" rule is one of administrative convenience and serves

three primary functions: (1) it prevents the employer from manipulat-

ing the election process by hiring employees favorable to its position

just prior to the election, see id.; (2) it ensures that the employee is

exposed to the arguments for or against unionization, see NLRB v.

Magnesium Casting Co., Inc., 668 F.2d 13, 19 (1st Cir. 1981); Dalton

Sheet Metal Co., 472 F.2d at 260 (noting that the rule "make[s] the

identity of eligible voters quickly and easily ascertainable"); and (3)

it is a "simple and fair" rule to "determin[e] whether newly hired

employees are part of the bargaining unit," Tom Wood Datsun, 767

F.2d at 352; see also Family Heritage Home, 491 F.2d at 349 (noting

that the rule "simplif[ies] the process of identifying eligible voters . . .

[since] objective evidence is usually available to pinpoint the time at

which an employee commences work while the date of`hire' is often

subject to dispute"). Based on the foregoing, the Board's rule is

clearly a reasonable one. Barring waiver,3 it is appropriate for the

Board to apply the rule in an effort to effectuate the meaning of the

term "employed" in an election agreement.

While it is undisputed that none of the employees at issue here per-

formed any unit work prior to the cut-off period, MAS insists that the

employees were, in fact, "employed." Before June 8, 1997, the Com-

pany had interviewed, tested, and offered jobs to each of the employ-

ees in question; received their acceptances of the offers; entered their

names into the payroll system database; issued MAS identification

cards and uniform items to them, as well as required the employees

to purchase other uniform items; paid for their medical examinations

and compensated them for time spent taking those examinations; and

_________________________________________________________________

3 The "actual work" rule may be waived by the parties in a written and

signed agreement. See Trilco City Lumber Co., Inc., 226 NLRB 289

(1976).

6

scheduled job training. MAS argues that such preliminary activities

make the three employees in question eligible voters.

MAS further contends that since none of the reasons in support of

the "actual work" rule is relevant to the instant case, the rule should

not be applied. First, MAS claims that it hired the three employees

before it knew of the Union's organizing campaign, so it was not

attempting to manipulate the election. Second, MAS points out that

it placed the names of the employees on the list of eligible voters pro-

vided to the Union, so the Union was able to campaign for their votes.

Since the Board's objectives in applying the rule are not jeopardized

in the present case, MAS urges, the rule's application is unnecessary

and arbitrary.

The Company presents compelling arguments, but we find them

unavailing in the situation before us. While bright-line rules, like the

one advanced by the Board here, may run the risk of being over- or

under-inclusive in their coverage, it is generally recognized that the

certainty and stability such a rule affords outweighs any harm done

when the rule is applied evenly. Here, the "actual work" rule facili-

tates the determination of voting eligibility and avoids disputes to the

extent possible. The benefits of uniform application of the rule, there-

fore, transcend any ill effects that may result from coverage of non-

working employees to whom the rule's rationale may not be directly

relevant.

The Company complains, however, that the Board has not, in fact,

applied the rule evenly, since it has previously included individuals

as "employees" even though they had not actually performed any bar-

gaining unit work. See Riviera Manor Nursing Home, Inc., 200

NLRB 333, 1972 WL 5129 (NLRB), enforced in part , 487 F.2d 1405

(7th Cir. 1973). In Riviera Manor Nursing Home , for example, the

Board allowed the union to count the signed authorization cards of

three employees who had been hired, but had not yet begun working

at the time they signed the cards, as proof of its majority status for

a bargaining order. 1972 WL 5129, at *2. The issuance of a bargain-

ing order pursuant to a determination of a union's majority status

requires the employer to recognize and bargain with the union without

an election. The Company argues that the Board's willingness to

allow a union to request recognition based on authorization cards

7

signed by non-working employees undermines its rigid adherence to

the "actual work" rule in the election context.

We are amenable to the Company's argument but believe that it

operates in favor of an expanded, not curtailed, application of the "ac-

tual work" rule. The determination of a union's majority status

"serves as a rough substitute for a union election -- a sort of second-

best mechanism for assessing the extent of union support among a

company's employees." Magnesium Casting Co. , 668 F.2d at 19. As

such, it makes sense that we apply eligibility deadlines to the majority

status determination, as we do in the election context. The practical

purposes that the "actual work" rule serves in a representation elec-

tion, e.g., ensuring that employees have been exposed to arguments

for and against unionization, are as essential in a determination of

majority status. We, therefore, find that requiring a hired employee to

perform bargaining unit work in order to be included in a count to

determine majority status is a reasonable and sensible extension of the

Board's "actual work" rule. See id. (applying the "actual work" rule

to a majority status determination). We do not here, however, purport

to require such an extension. Recognizing that the Board retains broad

discretion to establish and direct election procedures, we reserve that

decision for another day.

In addition, MAS asserts that the "actual work" rule is inconsistent

with the express terms of the Stipulation agreed upon by both MAS

and the Union. The Stipulation provides:

The eligible voters shall be unit employees employed during

the payroll period for eligibility, including employees who

did not work during that period because they were ill, on

vacation, or temporarily laid off, employees engaged in an

economic strike which commenced less than 12 months

before the election date and who retained their status as such

during the eligibility period and their replacements, and

employees in the military services of the United States who

appear in person at the polls.

MAS maintains that the Stipulation provision makes the date an

employee was hired, not the date bargaining unit work was first per-

formed, the relevant date for determining voting eligibility. The plain

8

language of the Stipulation suggests otherwise, however. As the

Board explains, the provision specifies that voters must be unit

employees "employed" during the payroll period for eligibility. It fur-

ther states that those "employed" include individuals who failed to

perform work during the eligibility period for one of the reasons set

out in the Stipulation. The provision's specification of limited

grounds for considering a non-working employee to be"employed"

only buttresses the general rule that employees who are not working

during the eligibility period are otherwise ineligible. See Barry Con-

trols, Inc., 113 NLRB 26, 27 (1955) (concluding that "in order to

vote, an individual must be employed and working on the established

eligibility date, unless that individual was absent for one of the rea-

sons set out in the . . . election agreement"); General Chemical

Works, 67 NLRB 174, 175 (1946) (finding that the only non-working

employees who could be exempt from the requirement that eligible

voters be employed and working on the established eligibility date

were those unit employees who were not working for reasons speci-

fied in the Direction of Elections).

Finally, MAS argues that the Board did not put it on sufficient

notice regarding the meaning given to the term "employed." MAS

contends that the Board deprived it of due process by using a criterion

for voting eligibility that was not clearly disclosed in the Stipulation.

First, as explained above, the Stipulation does suggest that non-

working employees, with the exception of those delineated, are ineli-

gible to vote. Second, in so much as the "actual work" rule is long-

settled Board policy, see, e.g., J. Halpern Co., 108 NLRB 1142, 1143

(1954) ("The Board's well-established election rules require that, in

order to be eligible to vote, an individual must be employed and

working on the established eligibility date, unless that individual was

absent for one of the reasons specified in the direction of election."),

MAS was duly informed of the operable meaning of the term "em-

ployed."

In agreement with the other circuits that have considered this ques-

tion, we find that the Board's rule excluding from voting eligibility

employees who have not actually worked is reasonable and well

within the Board's broad rule-making discretion regarding election

eligibility. We, therefore, affirm the Board's decision with respect to

the three challenged ballots.

9

III.

MAS also seeks to invalidate the election based on its allegations

that Union supporters intimidated unit employees with threats and the

destruction and misuse of MAS property. During the weeks before the

election, for example, MAS experienced an increase in the number of

ambulances that had to be removed from service due to vehicle mal-

functions and unexplained damage. Although MAS has conceded that

the misconduct could not be linked to specific individuals, it alleges

that Union supporters were responsible. In addition, MAS maintains

that Union supporters harassed anti-union employees and that one

Union advocate angrily confronted MAS personnel to create a ficti-

tious problem with management in order to attract Union support.

Given the circumstances, MAS insists that the Board should have set

aside the results of the election.

"[W]hen assessing the probable impact of particular incidents on

election results, conduct which is not attributable to either the

employer or the union is accorded less weight." NLRB v. Hydrotherm,

Inc., 824 F.2d 332, 337 (4th Cir. 1987). In cases involving third-party

or anonymous acts of misconduct, election results will be set aside

"only where the conduct is `so aggravated that a free expression of

choice of representation is impossible.'" Id. ; see also VSA, Inc., 24

F.3d at 595 (noting that "`the Board will not set aside an election

unless an atmosphere of fear and coercion rendered free choice

impossible'"). The objecting party must "`show by specific evidence

not only that unlawful acts occurred but also that such acts suffi-

ciently inhibited the free choice of employees as to affect materially

the results of the election.'" Hydrotherm, 824 F.2d at 334. No such

showing has been made in the present case. None of the acts of van-

dalism was perpetrated against a voter.4 None of the acts was accom-

panied by threats or acts of violence directed against anyone.5

_________________________________________________________________

4 In any event, we have recognized that a minor incident of property

damage, even if directed at an employee, is not enough to overturn an

election. See Hydrotherm, 824 F.2d at 337.

5 To support its conclusion that the misconduct had a coercive impact,

MAS has relied on testimony that was discredited by the Hearing Offi-

cer. One unit employee, Mark Buckholtz, apparently refused to place a

10

Furthermore, no evidence establishes that the Union or its agents were

responsible for the acts. The facts simply do not support a conclusion

that a "free expression of choice of representation [was] impossible."

Id. at 337.

Moreover, the Company's allegations of harassment of anti-Union

employees by Union supporters, even if true, do not aver conduct suf-

ficiently coercive as to set aside the election results. There is no evi-

dence that the alleged misconduct -- i.e., isolated name-calling, the

filing of a legitimate safety complaint with state authorities by a pro-

Union employee, an employee's mere speculation that the Union was

taping his conversations, and the alleged fabrication by a pro-Union

employee of a problem with the personnel department-- in any way

inhibited the free choice of employees. First, there was no actual

threat of physical harm; nor was there any indication in the record that

any employee feared for his or her personal safety. Second, there is

no evidence that the alleged misconduct was so aggravated and wide-

spread that it contaminated the election climate. Because the Com-

pany has not satisfied its burden of proving that pre-election, pro-

Union misconduct rendered free choice impossible, see id. at 334

(noting that party seeking to overturn election bears burden of proving

misconduct prevented fair election), we find no abuse of discretion in

the Board's decision to overrule the Company's objections.6 The

_________________________________________________________________

"vote no" sticker on his car because of fear of vandalism by pro-union

employees. The Hearing Officer discredited the employee's testimony

based on demeanor-related considerations, his "lack of memory," and a

"conflict between [his] prior recorded statement and his testimony at the

hearing." We will not "second-guess a fact-finder's determinations about

who appeared more `truthful' or `credible.'" Fieldcrest Cannon, Inc. v.

NLRB, 97 F.3d 65, 70-72 (4th Cir. 1996).

6 In addition, MAS argues that the Hearing Officer failed to consider

the substance of Unit Employee James Garner's conversations with other

employees as evidence that an atmosphere of fear and coercion existed

as a direct result of the Union supporters' alleged activities. At the hear-

ing, however, MAS maintained that Garner's testimony was not being

offered for the truth of the matter asserted. The Hearing Officer then

allowed the testimony for the limited purpose of showing that the con-

versations took place. To allow the testimony as proof that pro-Union

11

Board's Order will be enforced.

ENFORCEMENT GRANTED

_________________________________________________________________

activities created an atmosphere of fear and coercion would, in essence,

be an admission of the testimony for its truth. Since admission of the

conversations in the form MAS advocates would indeed be hearsay testi-

mony, Fed. R. Evid. 801(c) ("`Hearsay' is a statement, other than one

made by the declarant while testifying at the . . . hearing, offered in evi-

dence to prove the truth of the matter asserted."), not falling within any

recognized exception, we find no merit in MAS's claim.

12