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.

_________________________________________________________________

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
_________________________________________________________________
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
_________________________________________________________________
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