Abbott Laboratories, Ross Laboratories Division v. National Labor Relations Board , 540 F.2d 662 ( 1976 )

WINTER, Circuit Judge:

Abbott Laboratories (the Company) petitions to set aside an order of the Board finding that it violated § 8(a)(5) and (1) of the Act by refusing to bargain with the duly certified representative of its employees (Textile Workers of America — the Union), and the Board cross-petitions for enforcement. The Company does not dispute that it refused to bargain; its defense is one of vitiating irregularities in the representation election and proceedings in which the Board rejected the Company’s objections to the election. Because we are not persuaded that there were prejudicial defects in the representation election or procedural defects in the Board’s rejection of the Company’s objections, and because we are persuaded that the Board’s resolution of the factual issues arising out of the representation election is supported by substantial evidence, we grant enforcement.

I.

The election was held on July 20, 1973, at the Company’s plant in Altavista, Virginia. After challenges were resolved, the Union prevailed by a vote of 22 to 20.

The Company filed nine objections to the election. The charges were investigated and the Board adopted the Regional Director’s recommendation that a hearing be held on four objections and that the remaining objections be overruled. A hearing was held and the hearing officer recommended that these four objections also be overruled and the Union certified. The Company filed exceptions to' these recommendations and to certain procedural rulings made by the hearing officer. Besides attacking the hearing officer’s findings in general and his credibility resolutions in particular, the Company excepted to the hearing officer’s refusal to receive posthearing briefs and his refusal to disqualify himself on the basis of an alleged conflict of interest arising from the hearing officer’s refusal to disclose his membership (or lack thereof) in the NLRB Union. The exceptions were rejected by the Board and the Union certified on October 22, 1974. The refusal to bargain followed promptly thereafter and the unfair labor practice proceeding was begun on November 6, 1974.

Before us, the Company presses substantially all of the objections that it submitted to the Board. It asserts that the Board improperly overruled certain of its objections without a hearing, that there was lacking substantial evidence to overrule the objections as to which a hearing had been held, that the Board’s hearing officer improperly denied the Company the right to file a brief, and that the Board’s hearing officer should have disqualified himself because his possible membership in a union which admittedly had no interest in the litigation before him might nevertheless have led him to lack objectivity in judging the conduct of a Board agent who was a member of that union.

We see no merit in any of the arguments made to us and we think that they need not be discussed in detail.¹ In deference to our dissenting brother, however, we will discuss the Company’s contention that the election should be set aside because representatives of the Union threatened physical violence to the Company’s employees if they did not vote for and support the Union.

II.

The contention that the Union threatened employees with physical violence, thereby vitiating the election, rests solely on disputed testimony about statements made by Cecil Hall. Hall was a Company employee who was an active Union advocate and one of three employees who informally acted as a liaison with the Union’s official representatives.

There was testimony at the representation hearing that Hall, on three separate occasions, threatened to beat up employee Frederick Tubbs if Tubbs did not vote for the Union, and that, on one occasion, Hall threatened to kill or beat up employee Gerald Doss if Doss did not discontinue his work against the Union.

According to Tubbs, Hall’s first statement to Tubbs was made during May or June, 1973, at a meeting of Company employees at Leesville Dam. Hall asked Tubbs if Tubbs was for the Union. When Tubbs replied affirmatively, Hall said “if I [Tubbs] did not vote for the union he was going to throw me in the lake.” The next statement was made in early July, about two weeks before the election, at Wayside Park. Again Hall asked Tubbs if he was “still for the union,” and when Tubbs answered “yes,” Hall said “if you don’t vote for the union, I am going to kick your ass.” About a week later, at the time clock where employees punched in, Hall again said to Tubbs, “If you don’t vote for the union, I am going to kick you in your damn ass.” Tubbs did not take Hall’s first comment seriously; the second caused him some pause; and the third convinced him that Hall meant what he said. Tubbs was unable to say, however, whether his vote in the representation election had been influenced.

Hall’s statement about Doss was made to Wayne Crews some time before the election. Hall said that he would like to “kill” Doss, who was engaged in counter-organizational activities, but immediately added that he would not want to kill him but “just to beat the hell out of him.” Crews relayed the statement to Doss.

Hall denied that his statements to Tubbs were threats or were more than jokes not intended to be taken seriously. He denied making the statement about Doss. Although Tubbs’ testimony about what Hall said was corroborated by other witnesses, there was in fact no physical violence and Tubbs continued to attend Union meetings and made no effort to avoid Hall.

The Company sought to impeach Hall by showing the inconsistency between his testimony in which he admitted threatening Tubbs in jest and an affidavit that he gave a Board representative in which he denied that he threatened anyone, and on the basis of his convictions some twenty years before for theft and escape.

The hearing officer recited and analyzed the evidence pertinent to the Tubbs and Doss threats. He noted that with respect to Hall the evidence was in conflict, and then stated:

With respect to the alleged threats made to Tubbs, it is clear that these alleged statements were made at voluntarily attended pro-union meetings and although Tubbs admitted that he considered the first threat to be in jest, he began to consider it more seriously when the alleged threat was renewed 2 weeks prior to the election. In spite of this subjective reaction, Tubbs was not deterred from attending additional union meetings and he even attended the union’s victory party after the election. Tubbs was also the recipient of the sum of $11, which was loaned to him by pro-union employees to assist him in paying a fine. Such actions are inconsistent with any attempt to show an atmosphere of fear and coercion. Moreover, Tubbs disavowed two affidavits which he read, swore to under oath and gave to Board Agents conducting the investigation of objections and this in itself creates a very serious question as to his credibility. Noting also the inability of Wayne Crews in his testimony to recall Tubbs’ reaction to the threat about being kicked into the lake at Leesville Dam at a time when Tubbs himself readily admitted that he laughed at this alleged threat and further noting the demeanor of the witnesses, I do not credit the testimony of either Tubbs or Crews concerning the alleged threats to Tubbs. On the other hand, I do not credit the version of Cecil Hall who favorably impressed me on his demeanor as a generally credible witness. His admitted remark to Tubbs was clearly made in jest and prompted by the apparent threat, Jim Pruett made to Tubbs [to kill him if he voted for the union]. Under a well established legal principle the board does not permit a wrongdoer to profit from the illegal act of its agent, but more significantly, in this context Hall’s one remark to Tubbs was made in jest and in such a posture had no effect upon the election and objections based thereon should be overruled. (Footnotes omitted.)

In regard to Doss, the hearing officer reported:

With respect to the testimony of Gerald Doss, it is clear that Hall never directly threatened him and that after hearing the alleged threat second-hand, from employee Wayne Crews, Doss clearly indicated that he was not frightened and that the remark had no effect upon the way he voted. There was no evidence to show that this alleged threat received wide circulation or that the employee who was the recipient of the alleged threat was affected in any way by this alleged misconduct in the casting of his ballot at the polls. (Footnote omitted.)

The hearing officer’s conclusion and recommendation, subsequently adopted by the Board, was:

Based on all of the foregoing and noting particularly that the entire critical period prior to the conduct of the election was totally free from any actual physical violence or property damage and that the employees who allegedly made coercive statements were not officers or agents of Petitioner [the Union] or so closely associated with Petitioner as to warrant other employees into believing that they had authority to act for it and that there was no evidence to establish that the Petitioner or any of its agents ever authorized, ratified or condoned any coercive conduct, I find that Employer’s Objection No. 1 [threats of physical violence] does not raise substantial or material issues with respect to conduct affecting the results of the election. (Footnote omitted.)

. it is recommended that [this] objection be overruled . . . [and]

that a Certification of Representative issue.

III.

As we review the record, this is a case in which a determination of whether there were such threats of physical violence as to justify setting aside the election depends largely on the resolution of conflicting testimony based upon the credibility of the witnesses. Credibility is an issue for the hearing officer; and especially when it depends largely on observation of the witnesses’ demeanor at the hearing, its resolution by the hearing officer will not be overturned. NLRB v. Walton Mfg. Co., 369 U.S. 404, 408, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962); NLRB v. Lester Bros., Inc., 301 F.2d 62, 68 (4 Cir. 1972). Certainly the hearing officer’s determination will not be upset by a mere head count of how many witnesses testify to each of two conflicting versions of an event, cf. NLRB v. Union Carbide Caribe, Inc., 423 F.2d 231, 233 (1 Cir. 1970), particularly when some of the witnesses supporting the version having numerical superiority are contradicted either by others who support the same ultimate fact or by their own prior statements. Hall’s prior criminal record of twenty years earlier did not require that he be disbelieved, cf. Rule 609(b), Fed.Rules of Evidence, although Tubbs’ very recent conviction for assault and battery could be deemed to undermine his persuasiveness.

Affording the hearing officer’s credibility determinations the respect to which they are entitled, we cannot say that the record fails to support his conclusion that the election was not prejudiced by threats of violence. Hall was not the Union’s representative; he had no official position with the Union; nor was he on its payroll. The record is lacking in evidence that the Union authorized any of Hall’s statements, or that it was aware of them and failed to disavow them. More importantly, the record does not show a general atmosphere of fear and coercion so as to render improbable employee free choice in voting. Admittedly Hall did not always express himself in polite language and he had resort to hyperbole; but in an industrial setting, his choice of language was not uncommon nor would it be expected to have a coercive impact. NLRB v. Bostic Division, USM Corp., 517 F.2d 971 (6 Cir. 1975); Scovill Mfg. Co. v. NLRB, 443 F.2d 358 (4 Cir. 1971).

ENFORCEMENT GRANTED.

1 . Besides asserting that the Union threatened employees with physical violence, the Company argues that the Union falsely accused the Company of planning reprisals if the Union won the election. The Board found that the Company had ample opportunity to rebut any false accusations about its own plans. The Company argues, second, that the Union engaged in improper electioneering between the morning and afternoon voting sessions. The Board found that pro-Union employees’ forecasts of victory would have been regarded as mere puffing and did not imply access to inside information. The Company next asserts that the Union threatened employees with loss of employment if they did not become members of and support the Union. The Company produced no evidence on this objection, and the Board deemed it to have been abandoned. The Company’s fourth argument is that an official Board notice of election was defaced so as to benefit the Union. The Board found that the defacing of the election notice was an isolated, individual prank, and that any prejudice could easily have been remedied by the Company. Next, the Company contends that the Union had misrepresented a contract which the Union had negotiated with another employer. The Board found that there was no misrepresentation, since the Union had participated in the claimed negotiations, and failure to disclose the fact that other unions had played a dominant role in the bargaining was not a material omission. Sixth, the Company argues that the Board’s agent conducting the election had made improper remarks to eligible voters. The Board found that any improper remarks were not prejudicial, since they were not made within the hearing of anyone who had not yet voted, and were not so extreme as to justify setting aside the election in the absence of prejudice on the theory that they destroyed the appearance of the Board’s impartiality. The Company’s seventh assertion is that there had been improper conduct at the polling place by one of the Union’s observers. The Board found that it was not improper for the observer to stand rather than sit. With regard to the Company’s eighth argument that the marking of one ballot was visible as it was being deposited in the official ballot box, the Board found this occurrence to be an isolated accident which had no effect on the election.

With respect to proceedings before the hearing officer, the Board ruled that its hearing officer was not required, either by statute or the due process clause, to accept posthearing briefs since the parties had the opportunity tó express their views in writing both before and after the case was referred to the hearing officer. The Board also ruled that the hearing officer did not have an interest in the litigation merely because he might have belonged to the same union as one of the witnesses who appeared before him.

We see no error of fact or law in these rulings, or lack of substantial evidence to support these findings.