National Labor Relations Board v. Glades Health Care Center , 257 F.3d 1317 ( 2001 )

NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent,
v.
GLADES HEALTH CARE CENTER, Respondent-Cross-Petitioner.
No. 00-12665.
United States Court of Appeals,
Eleventh Circuit.
July 20, 2001.
Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations
Board.(NLRB No. 12-CA-20506).
Before HULL, RONEY and GOODWIN*, Circuit Judges.
RONEY, Circuit Judge:
The National Labor Relations Board (Board) and "Unite! Union of Needletrades, Industrial and
Textile Employees, AFL-CIO, CLC" (Union) as intervenor petition for enforcement of the Board's orders
directing the employer, Glades Health Care Center (Company) to recognize and bargain with the Union. The
Company cross-petitions for review and to have set aside orders of the Board (1) certifying the Union as the
collective bargaining representative for certain of the Company's employees and (2) finding that the Company
engaged in an unfair labor practice by refusing to bargain with the Union in violation of § 8(a)(5) of the
National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Company alleges several pre-election
improprieties the cumulative effect of which it argues has tainted the laboratory conditions required in such
elections. See General Shoe Corp., 77 NLRB 124, 127 (1948). Specifically, the Company claims that its
refusal is justified and the Board should have set aside the election because (1) the Union engaged in
campaign practices that are prohibited under Peerless Plywood Co., 107 NLRB 427 (1953) and its progeny;
(2) an eligible voter was improperly disenfranchised when she received two phone calls from purported Union
agents with one caller asking if the Union had her support, and the other caller providing false information
regarding the time of the election; and (3) a torn piece of a ballot was discovered following the election. The
Company also claimed error in the Board's refusal to reopen the record to admit additional evidence and in
ordering the Company to bargain and provide information. Based upon the findings of fact by which this
Court is bound, we are not persuaded that the Board erred in holding that the Union's rally did not violate the
*
Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
rule in Peerless Plywood. Accordingly, we hold that the Board did not abuse its discretion in certifying the
Union as the collective bargaining representative for certain of the Company employees, and the Board's
petition for enforcement is GRANTED. The Company's cross-petition for review and to have the Board's
orders set aside is DENIED.
1. The Election.
Glades Health Care Center operates a nursing home in Pahokee, Florida. On May 24, 1999, the
Union filed a petition with the Board seeking certification as the collective bargaining representative of the
Health Care Center's certified nursing assistants (CNAs), housekeeping, laundry and maintenance employees
and others. Pursuant to a stipulated election agreement entered into by all parties, on July 7, the Board
conducted a secret-ballot election at the Company.
The Union had set up shop in a vacant house across a two-lane road that borders the facility about
fifty yards away. The house is clearly visible from the front entrance of the facility, from the west wing of
the facility and some residents' windows. On July 6, 1999, the day before the election, the Union set up a
rally from about 2:15 p.m. until about 4:30 p.m. during which it broadcast music and speeches from the
driveway of the house using bullhorns and a public address system. Employees at the Company work in two
shifts: day shift is from 7:00 a.m. to 3:00 p.m. and afternoon shift is from 3:00 p.m. to 11:00 p.m. The rally
coincided with this shift change.
When the election was completed, the tally of ballots showed that of the 77 eligible voters, 38 voted
for the Union, 30 voted against and 4 were challenged ballots. The Company filed seven objections, arguing
that the Board should set aside the election because of the Union's pre-election conduct. After conducting
a hearing on the objections, the hearing officer issued a report recommending that the Company's objections
be overruled and that the Union be certified as the employees' bargaining representative. The Company filed
an exception to the hearing officer's findings, and on October 12, 1999, the Board issued a decision adopting
the hearing officer's findings and certifying the Union.
The Company then sought to reopen the record to admit an undated articled from the Union's
newsletter as evidence the Company claimed would require the Board to sustain one of the Company's
election objections and set aside the election. The Board denied the Company's motion, finding that the
article would not alter the Board's decision.
Following the Union's certification, the Company refused to bargain. The Board found that the
Company violated § 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. 158(a)(5)
and (1), by refusing to bargain with the Union, and required the Company to bargain with the Union upon
request and to post copies of a remedial notice. The Board and the Union as intervenor petition this Court
for enforcement of the Board's order, and the Company seeks review and to have the order set aside.
2. The Peerless Plywood Rule.
In Peerless Plywood Co., 107 N.L.R.B. 427 (1953) the Board established a rule to be applied in all
election cases that prohibits both employers and unions "from making election speeches on company time
to massed assemblies of employees within 24 hours before the scheduled time for conducting an election."
107 NLRB at 429. On the afternoon before the election, the Employer assembled employees on its property
to have them listen to a speech. The Board explained that such a speech "tends to create a mass psychology
which overrides arguments made through other campaign media and gives an unfair advantage to the party
... who in this manner obtains the last most telling word." 107 NLRB at 429. The key to the decision was
that the employees' attendance at the election speech was not voluntary.
Subsequently, the Board held it to be a violation when within twenty-four hours of the election and
continuing for more than seven hours, the union broadcast campaign speeches and other material from a
sound truck parked on the street across from the employer's plant. See United States Gypsum, 115 NLRB 734(1956). The broadcast was audible inside parts of the plant. Approximately 50 of the 325 workers at the
plant heard "or were in a position to hear" the sound trucks while working at their usual stations. Gypsum,
115 NLRB at 735.
Likewise, in Industrial Acoustics v. NLRB, 912 F.2d 717 (4th Cir.1990) on the day before the election
and on election day, the Union parked a car, mounted with a loudspeaker system 25-30 yards from the plant
entrance and broadcast music and campaign messages during shift changes and lunch breaks. The Board held
that the broadcasts, which extended into working hours and the captive lunch break, violated Peerless
Plywood.
Bro-Tech Corp. t/a Purolite, 162 LRRM (BNA) 1399 (1999) was a case questioning whether music
involved the campaign speech targeted in Peerless Plywood. The union in Bro-Tech, on the day of the
election, broadcast tape-recorded music with pro-union lyrics from a sound truck parked across the street from
the Employer's facility from 7:00 a.m. to 4:30 p.m. The Board determined that these facts established a
violation of Peerless Plywood. "[J]ust prior to casting their votes, these employees—whether on their way
in to work, on the job, and/or while leaving the plant—were exposed to the Union's campaign broadcast
whether they wished to hear it or not." 162 LRRM at 1402. The Board held it to be a violation even though
the "speech" was in the form of songs. These cases established the principle that an election violation occurs
when employee voters are forced to hear an election speech either by attendance at a required meeting or
when they are at their required work stations.
The facts, as found by the Board, do not establish that such a violation occurred in this case. It is
clear that in these cases following Peerless Plywood, there was a firm purpose to use vehicles equipped with
loudspeakers to "intentionally broadcast campaign speeches" into the employer's facility so that the
employees at their work stations could not avoid hearing it. There was no other purpose. In this case, by
contrast, the Union held an off-premises rally, and while the Union used loudspeakers at the rally, "there is
no evidence that it intended to use them for any purpose other than to broadcast its message to those who
voluntarily chose to attend the rally."
The Company argues that the Board improperly weighed the evidence in this regard, and improperly
failed to find that employees at their work stations were in a position to hear the election speech, and therefore
were a captive audience. Under our standard of review, however, the findings of the Board will be upheld
on appeal if they are supported by substantial evidence in the record as a whole. See Cooper/T. Smith, Inc.
v. NLRB, 177 F.3d 1259 (11th Cir.1999). It is not enough to show that contrary findings might also be
supported by the record.
There was varied testimony about the honking of horns and the disruption of the ability of employees
on the job to hear what was being said. The hearing officer determined that:
Since there was no credited evidence to the contrary, it seems that the eligible voters were unable to
hear the exact words of the speech. In fact, none of the eligible voters who testified indicated that
they heard any specific words or phrases.
As to the argument that the employees were a captive audience, the hearing officer found this:
The Employer has indicated that the employees were a captive audience because they were unable
to escape the noise of the union rally while on working time. However, a review of the witness
testimony failed to reveal any hint of a violation of the Peerless Plywood prohibitions. The credited
evidence supplied by the witnesses shows that the CNAs assigned to the shift on the west wing
voluntarily peered out an opened window to see what the commotion was about, then closed the
window and went about their business. The record also shows that several other eligible voters were
outside for a few minutes during the rally to perform duties and may have overheard some of the
commotion. Further, there is no credited evidence that any eligible voters heard any specific part of
the speeches or the singing made during the rally. In fact, it is admitted by Jablonski and the other
witnesses, that the union agents and supporters were at least fifty yards away from the facility at all
times during the rally on the day before the election.
We have carefully reviewed this case and conclude that these findings are supported by substantial
evidence in the record as a whole. To deny enforcement here would require us to hold, in effect, that a union
rally held off premises, close enough to the employees' place of business so that some peripheral sounds could
be heard in the facility, was an election violation, even though the sound so heard did not rise to the level of
coherent election speech. That would be a stretch of the basic principles derived from Peerless Plywood
which, as yet, is unsupported by the cases.
Peerless Plywood was not intended to interfere with the rights of unions or employers to circulate
campaign literature on or off premises at any time prior to the election, nor to prohibit the use of any other
legitimate campaign propaganda or media. The Board stated that "the rule does not prohibit employers or
unions from making campaign speeches on or off company premises during the 24-hour period if employee
attendance is voluntary and on employees' own time." Peerless Plywood at 430.
We have reviewed the other objections of the Company to enforcement of the bargaining order and
find them to be without merit.
PETITION FOR ENFORCEMENT GRANTED, and CROSS-PETITION FOR REVIEW DENIED.