[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_______________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 24, 2001
No. 00-14015
THOMAS K. KAHN
_______________ CLERK
NLRB No. 10-CA-30575
THE WALDINGER CORPORATION,
Petitioner-Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner,
LOCAL 72 OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY,
Intervenor.
______________________________
Petition for Review of an Order and Cross Application for Enforcement
of the National Labor Relations Board
______________________________
(August 24, 2001)
Before BIRCH, WILSON and FARRIS*, Circuit Judges.
BIRCH, Circuit Judge:
*
Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
The Waldinger Corporation seeks relief from an order of the National Labor
Relations Board (the “Board”), which found that Waldinger engaged in an unfair
labor practice by improperly withdrawing its voluntary recognition of Local 72 of
the United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry (the “union”) and refusing to negotiate a labor contract with
the union. The Board cross-petitions for enforcement of its order. Waldinger
admits that it withdrew recognition and refused to negotiate with the union. The
only issue before us is whether Waldinger’s actions were justified because of
improper supervisory influence over employees who signed authorization cards for
union representation. The Board found no supervisory taint, and, because that
decision was supported by substantial evidence, we AFFIRM.
I. BACKGROUND
The material facts of this case are not in dispute. Waldinger provides
heating and air conditioning services to commercial and industrial businesses. In
July 1997, Waldinger employed thirteen service technicians in its Smyrna, Georgia
office, including Arthur Peterson, who worked as a technician and also supervised
the other twelve technicians. Waldinger was a signatory to the National
Mechanical Equipment Service and Maintenance Agreement, a pre-hire agreement
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with the International Union affecting the thirteen service technicians.1 On 11 June
1997, Waldinger notified the International Union that it was terminating the
agreement effective 16 August 1997. The International Union notified Local 72 of
the termination and suggested that the union try and obtain a local agreement if one
was not already in place. Union organizer Clyde Jones contacted Waldinger’s
president, Thomas Koehn, and received a negative impression of Waldinger’s
willingness to sign a local agreement. Jones then sought to organize the service
technicians and obtain voluntary recognition of the union by Waldinger.
To that end, Jones contacted Peterson and another service technician who
was a union member and asked them to notify Waldinger’s service technicians that
a meeting would be held at the union hall on 31 July 1997. Peterson informed
some of the technicians of the meeting and told them it was important that they be
there. All thirteen technicians attended the meeting. Union officials informed the
group that Waldinger had terminated its agreement with the International Union.
Union officials discussed the union benefits plan, answered questions and
1
The parties stipulated that the relevant unit was:
All full-time and part-time HVAC service technicians employed by [Waldinger] out of its 1600
Wilson Way, Suite 12, Smyrna, Georgia branch office, but excluding all office clerical
employees, sales employees, . . . guards and supervisors as defined in the Act.
Waldinger Corp., 331 NLRB No. 70, n. 5 (June 30, 2000).
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discussed the benefits of union organization. Several employees voiced their
opinions, both for and against the union. Peterson spoke in favor of the union,
noting that the technicians did not know what their pay and benefits would be
without the union.2 The union representatives instructed the group to vote on
whether they wanted to be represented and then left the room. Peterson remained.
More discussion followed and then a voice vote was taken by going around the
table. The union representatives returned to the room and distributed authorization
cards. Nine of thirteen technicians signed cards. Later that evening, a technician
called the Smyrna branch manager, William McMillen, at home, related what had
occurred at the meeting and informed him that nine technicians had signed
authorization cards.
The next day, Jones went to McMillen’s office, informed him that a majority
of the technicians had signed authorization cards and presented a demand letter for
recognition of the union as the collective bargaining agent for the unit. McMillen
had an opportunity to view the cards.3 McMillen agreed to have Waldinger meet
2
Waldinger had decided to change the employees’ pay and benefit plan, but intentionally
did not inform Peterson of what the new plan would be.
3
Jones testified at the hearing before the administrative law judge (“ALJ”) that he handed
the cards to McMillen and that McMillen fanned the cards before returning them to Jones. The
ALJ credited this testimony. Either way, McMillen had the opportunity to review the cards if he
had so desired.
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and negotiate with the union. On 4 August, Waldinger’s president sent a letter to
the union agreeing to conduct negotiations and asking to see a copy of any
proposed agreement the union might wish to present.
Before negotiations could begin, McMillen was contacted by an employee
who changed his mind about wanting union representation. McMillen drafted a
petition for the employee and a majority of the unit technicians signed the petition.
On 11 August, after receiving the petition and learning more about Peterson’s role
in the union meeting, Koehn withdrew recognition from the union and refused to
negotiate. Waldinger also ceased contributing to the union pension fund on 11
August. On 18 August, Waldinger unilaterally raised pay and increased other
benefits for unit technicians.
The ALJ found that Peterson was a supervisor, but that his involvement did
not taint the signing of representation cards because there was no evidence of
coercion by him. The ALJ also found that McMillen, the branch manager,
voluntarily recognized the union on 1 August and that this recognition was
confirmed by Koehn’s letter of 4 August. Because an employer is required to
negotiate in good faith for a reasonable period of time after voluntary recognition
of a union, the ALJ found that Waldinger engaged in an unfair labor practice when
it withdrew recognition from the union and unilaterally altered wages and benefits
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without negotiating with the union. The NLRB affirmed this decision, and
Waldinger appeals.
II. DISCUSSION
We will not reverse a decision of the Board that is supported by substantial
evidence. 29 U.S.C. § 160(e). “We may not override the Board’s choice between
two fairly conflicting views.” Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259,
1269 (11th Cir. 1999). Waldinger asserts that the authorization cards were tainted
by a supervisor’s influence because Peterson attended the union meeting and spoke
out in favor of signing cards. The company also argues that the Board used an
incorrect legal standard to determine whether supervisory taint existed. Therefore,
before we can determine if the Board’s decision is supported by substantial
evidence, we must first decide whether the proper legal standard was used.
Supervisory taint will invalidate an authorization card where the supervisor’s
actions either (1) convey a false impression that the employer company favors the
union, or (2) raise the possibility of coercion and fear of retaliation because of the
supervisor’s position of authority over the affected employees. Millsboro Nursing
and Rehab. Ctr., 327 NLRB 879, 879 (Mar. 17, 1999) (internal citations omitted).
This two part test “has been firmly entrenched in Board precedent for more than a
quarter of a century . . . [and] has been repeatedly approved by the courts.” Id. See
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also Orlando Paper Co., Inc., 197 NLRB 380, 387 (1972), enforced, 480 F.2d
1200, 1202 (5th Cir. 1973). In determining whether the authorization cards were
tainted, the Board asked whether Peterson’s conduct implied that Waldinger
favored the union or, alternatively, whether his conduct raised the concern that
employees had been coerced into signing cards by fear of retaliation by Peterson.
Therefore, the Board used the proper standard to evaluate whether the
authorization cards were tainted by Peterson’s actions.
The Board’s decision was also supported by substantial evidence. At the
union meeting, the technicians were informed by union officials that Waldinger
had cancelled its agreement with the International Union. There could have been
no confusion regarding Waldinger’s desire to terminate its relationship with the
union. The Board’s decision that a false implication of employer support was not
present is supported by substantial evidence.
Waldinger asserts, however, that the second prong of the test for supervisory
taint was met because employees were coerced into signing authorization cards by
Peterson’s vocal support for the union. An authorization card should reflect an
employee’s free choice, and “it is essential that the card not be tainted by the use of
supervisory pressure.” NLRB v. WKRG-TV, Inc., 470 F.2d 1302, 1313 (5th Cir.
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1973). However, a supervisor’s support for the union, without more, is not
sufficient to demonstrate taint.
So long as nothing in the words, deeds, or atmosphere of the alleged
‘solicitation’ contain the seeds of potential reprisal, punishment, or
intimidation, the involvement of the supervisors does not rise to the
levels of supervisory ‘solicitation’ that we condemn[].
Id. at 1316. See also NLRB v. San Antonio Portland Cement Co., 611 F.2d 1148,
1151 (5th Cir. 1980) (per curiam) (“[T]his Circuit has clearly held that not just any
advocacy of a union by a supervisor rises to the level of supervisory pressure or
coercion.”).
In this case, Peterson vocally advocated the union and was present when a
voice vote was taken. He did not, however, initiate the meeting or pass out
authorization cards. Several employees spoke out against the union at the meeting
and several chose not to sign authorization cards. No testimony was presented that
any employee felt pressured or coerced into signing a card. Accordingly, the
Board’s decision is AFFIRMED.
Waldinger also asks us to find that the Board’s order impermissibly requires
Waldinger to make retroactive payments into the union’s fringe benefits fund. We
decline to address this issue, as it is not yet ripe for review. Neither the ALJ’s or
the Board’s opinions require any payments into the fund. Rather, the issue was
deferred to the compliance stage of the proceeding which has not yet commenced.
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III. CONCLUSION
Because we find that the Board used the proper legal standard and its
decision was supported by substantial evidence, we AFFIRM and the NLRB’s
cross-petition to enforce its order is GRANTED.
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