and 02-4472 TRIMM ASSOCIATES, INC v. National Labor Relations Board

PRECEDENTIAL
Filed December 3, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-4194 and 02-4472
TRIMM ASSOCIATES, INC.,
Petitioner No. 02-4194
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
NATIONAL LABOR RELATIONS BOARD,
Petitioner No. 02-4472
v.
TRIMM ASSOCIATES, INC.,
Respondent
On Petition for Review of the Orders of the
National Labor Relations Board entered
March 5, 2002; March 27, 2002 and October 30, 2002
(NLRB Case Nos. 4-RC-20265 and 4-CA-31353)
Argued July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and
AMBRO, Circuit Judges.
(Filed: December 3, 2003)

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Brian P. Kirby, Esq. [ARGUED]
Gallagher, Schoenfeld, Surkin
& Chupein
25 West Second Street
P.O. Box 900
Media, PA 19063
Counsel for Petitioner/Cross
Respondent Trimm Associates, Inc.
Aileen A. Armstrong, Esq.
Julie B. Broido, Esq.
Kathleen E. Lyon, Esq. [ARGUED]
National Labor Relations Board
1099 14th Street, N.W., Suite 8101
Washington, D.C. 20570-0001
Counsel for Respondent/Cross
Petitioner National Labor Relations
Board
OPINION OF THE COURT
RENDELL, Circuit Judge.
This case arises out of a union representation election at
Trimm Associates, Inc. in September of 2001, in which
Trimm’s employees voted four votes to three in favor of
representation. Trimm contends that the National Labor
Relations Board (“Board”) should have set aside the election
because of improper electioneering just prior to and during
the election, in violation of the National Labor Relations Act
(“Act”), and accordingly challenges the Board’s certification
of Glaziers Local 252 (“the Union”) as the collective
bargaining representative for its employees. Trimm now
petitions for review of the Board’s order directing it to
bargain with the Union, and the Board, in turn, seeks
enforcement of its order. We agree that the Board abused
its discretion by resolving certain substantial and material
factual issues without an evidentiary hearing. We will,
therefore, grant Trimm’s petition for review, deny the
Board’s cross-application for enforcement, and remand.
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I.
On August 6, 2001, the Union filed a petition seeking to
represent the employees of Trimm, a small glass fabrication
and installation company located in Media, Pennsylvania. A
secret ballot election was held the following month. Ten
individuals voted in the election, seven of whom were the
then-current employees whose votes were ultimately tallied.
The remaining three — Eric Boerckel, Joe Boerckel, and
Gerry Gebhart — were former employees. They had recently
been let go by the company, but, because of grievances and
the possibility that their discharges might have constituted
unfair labor practices, they were permitted to vote. Their
votes were sealed pending resolution of the unfair labor
practice charge and so were not counted.
Of the seven eligible voters, four voted for the Union and
three voted against. Trimm filed timely objections, alleging
a violation of the Board’s longstanding rule, first
announced in Milchem, Inc., 170 N.L.R.B. 362 (1968),
generally prohibiting prolonged conversations between
union or employer agents and employees waiting to vote.
According to Trimm, two of the former employees, brothers
Eric and Joe Boerckel, were Union agents and had engaged
in prolonged pro-union conversations with Trimm
employees waiting to cast their ballots. Trimm therefore
requested that the results of the election be set aside.
Alternatively, it sought an evidentiary hearing.
In support of its objections, Trimm presented three
affidavits — two by Trimm employees who were eligible
voters, and one by Trimm’s president — along with
supporting materials. The affidavits attested to the fact that
the Boerckels were union “organizers” in the shop, and
described the following events from the morning of the
election.
Shortly before the election was to begin, the Boerckel
brothers met briefly with representatives of the Union in
Trimm’s parking lot. When the meeting on Trimm’s
premises was broken up by Trimm’s president, Clay
Jordan, the men crossed the street and continued their
discussions.
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The balloting took place inside Trimm’s shop, near a
large glass table. Individuals waiting to vote, including
Trimm’s then-current employees as well as the Boerckel
brothers, congregated near another glass table in the shop,
approximately 20-30 feet from the polling.
Just prior to the opening of the polls and during the
balloting, the Boerckel brothers, who had both obtained
unionized positions elsewhere, discussed with the other
voters the union job status they enjoyed since being
discharged by Trimm. Joe Boerckel displayed a paycheck
from his new job, for either $970.00 or $770.00, which he
represented as his net pay after taxes and benefits. He also
stated that the Union had guaranteed him jobs on
upcoming projects at the Philadelphia Convention Center
and the Philadelphia International Airport. Eric Boerckel
stated that the Union had secured employment for him in
New Jersey, and that he earned more than his brother
because of his longer commute.
After conducting an investigation, which in large part
confirmed that the activity asserted in Trimm’s affidavits
took place, the Regional Director recommended that
Trimm’s objections be overruled and the results of the
election certified, reasoning that Trimm’s Milchem objection
that the election should be set aside based on improper
electioneering by the Union was meritless because there
was no evidence that the Boerckels were Union agents.
Trimm sought reconsideration, and offered as proof of
agency a copy of the Union’s then-pending (but later
withdrawn) unfair labor practice charge against Trimm
based on the discharge of the Boerckel brothers.1 The
charge asserted that the Boerckels were the Union’s “lead
organizers” at the shop. The request for reconsideration
was denied.
Trimm then filed exceptions to the Regional Director’s
Report, requesting that the Board set aside the election or,
1. With respect to the Boerckels, because the Union withdrew the unfair
labor practice charge, the Regional Director found that their votes were
ineligible. The Regional Director further found that Gebhart was not
eligible to vote because no unfair labor practice charge was ever filed
regarding his discharge.
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in the alternative, direct an evidentiary hearing for the
presentation and consideration of testimony and evidence
relevant to its objections. Trimm reiterated the arguments
it had presented to the Regional Director, and, in addition,
argued that the Boerckels’ conduct was sufficiently
egregious to warrant setting aside the election even
assuming that the Boerckels were not agents of a party to
the election. On March 5, 2002, the Board, without
analysis, adopted the Regional Director’s report and
certified the Union as the employees’ collective bargaining
representative. Trimm’s request for Board reconsideration
was denied.
To obtain judicial review of the circumstances
surrounding the representation election, Trimm refused to
bargain with the Union, and in June of 2002, the Union
filed an unfair labor practice charge.2 The Board agreed
with the Union that Trimm had wrongfully refused to
bargain with the employees’ collective bargaining
representative, in violation of the Act, and ordered Trimm to
cease and desist from its refusal to bargain. On November
13, 2002, Trimm filed this Petition for Review, and on
December 17, 2002, the Board filed a Cross-Application for
Enforcement of its order.
The Board had jurisdiction over this unfair labor practice
action pursuant to § 10(a) of the Act, and we have
jurisdiction under § 10(e) and § 10(f). See 29 U.S.C.
§§ 160(a), (e), (f). Because the Board’s unfair labor practice
decision is based in part on issues decided in the
underlying representation election proceeding, we may
address those issues in determining whether we will enforce
the Board’s unfair labor practice order. See 29 U.S.C.
§ 159(d); NLRB v. J-Wood/A Tappan Div., 720 F.2d 309 (3d
Cir. 1983); Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 293
(3d Cir. 1981).
Generally, our standard of review of orders of the Board
is highly deferential. We have plenary review over questions
2. As certification orders are not final, appealable orders, Trimm had to
expose itself to an unfair labor practice charge to challenge the validity
of the election in the Court of Appeals. See, e.g., St. Margaret Mem’l
Hosp. v. NLRB, 991 F.2d 1146, 1151 n.5 (3d Cir. 1993).
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of law and the Board’s application of legal precepts, but
defer to the Board’s reasonable interpretation of the Act.
Spectacor Mgmt. Group v. NLRB, 320 F.3d 385, 390 (3d Cir.
2003). The Board “ ‘need not show its construction is the
best way to read the statute,’ ” so long as its construction
is a reasonable one. Id. (quoting Holly Farms Corp. v. NLRB,
517 U.S. 392, 409 (1996)); see also, e.g., Allegheny Ludlum
Corp. v. NLRB, 301 F.3d 167, 174-75 (3d Cir. 2002). We
accept the Board’s factual findings if they are supported by
substantial evidence on the record as a whole. See, e.g.,
Spectacor, 320 F.3d at 390; see also 29 U.S.C. § 160(e). The
Board’s regulations require it to conduct a hearing where a
party has raised a “substantial and material factual issue.”
29 C.F.R. §§ 102.69(d), (f). The Board’s refusal to conduct
an evidentiary hearing is reviewed for abuse of discretion.
St. Margaret Mem’l Hosp. v. NLRB, 991 F.2d 1146, 1152 (3d
Cir. 1993).
II.
Trimm’s objections to the representation election present
three issues for our consideration. First, whether the
Boerckels’ conduct during the election so impaired the free
choice of the eligible voters as to require that the election
be set aside, even if they should be found to not be Union
agents, but, rather, just third-parties. Second, whether the
Boerckels were in fact Union agents, which would render
the electioneering improper and require the setting aside of
the election. And third, whether the Board abused its
discretion by not holding a hearing on Trimm’s objections,
particularly with regard to the question of the Boerckels’
agency status.
While the evidence currently in the record is insufficient
to warrant an outright reversal of the Board’s ruling with
respect to the first two issues, we agree with Trimm that it
should have been given the opportunity to explore these
issues further by way of an evidentiary hearing. The
Board’s regulations provide for a hearing where a party has
raised a “substantial and material factual issue.” 29 C.F.R.
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§§ 102.69(d), (f). For the reasons that follow, we believe that
the standard has been met in this case.3
Under our case law, in order to obtain an evidentiary
hearing a party must make a proffer of evidence that raises
a substantial and material issue of fact that, if resolved in
the party’s favor, would warrant setting aside the election.
See St. Margaret, 991 F.2d at 1152; J-Wood, 720 F.2d at
313-14; Anchor Inns, 644 F.2d at 296. The proffer of
evidence “may not be conclusory or vague,” but must “point
to specific events and specific people.” Anchor Inns, 644
F.2d at 296; see also J-Wood, 720 F.2d at 315 (“Under
Anchor Inns a party objecting to a representation election
must produce adequate evidence to show that there is
substance to its allegations and not mere rhetoric.”). On the
other hand, if the proffer of evidence, even if taken as true,
does not support a basis for setting aside the election, no
evidentiary hearing is required. See St. Margaret, 991 F.2d
at 1156; J-Wood, 720 F.2d at 313-314; NLRB v. ARA Servs.,
Inc., 717 F.2d 57, 67 (3d Cir. 1983); Anchor Inns, 644 F.2d
at 296.
Although we ordinarily review the Board’s decision not to
grant an evidentiary hearing for an abuse of discretion,
“[w]here elections are close, however,” like this one, we have
stated that “closer scrutiny of objections may be required of
the Board.” St. Margaret, 991 F.2d at 1156 (quotations
3. While the focus of Trimm’s arguments has been on the agency status
of the Boerckels, we think it appropriate that, on remand, it have the
opportunity to adduce evidence regarding the atmosphere of the election
generally, which, based on the close quarters, relationships of the
parties, and other non-tangibles, may have made it a coercive
environment. The workers aligned with Trimm have not said they were
coerced or inhibited, but those whose testimony would have been
difficult to obtain may have been. See J-Wood, 720 F.2d at 315. And, if
that evidence were developed at the hearing, the Board should be free to
rule on this issue as well, just as it would have had a hearing been held
in the first instance. Furthermore, this is consistent with our view that
special scrutiny should be given to an election such as this where the
result is as close as it can be, and the voting population small. St.
Margaret, 991 F.2d at 1156. Accordingly, we will permit inquiry at the
hearing to be held on remand into the aspects of the election that bear
on its essential fairness.
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omitted); see also, e.g., NLRB v. Valley Bakery, Inc., 1 F.3d
769, 773 (9th Cir. 1993) (“The need for a hearing is
particularly great when the election is close.”); J-Wood, 720
F.2d at 317 (“[T]he necessity for a hearing is particularly
great when an election is close, for under such
circumstances, ‘even minor misconduct cannot be
summarily excused on the ground that it could not have
influenced the election.’ ” (quoting NLRB v. Bristol Spring
Mfg. Co., 579 F.2d 704, 707 (2d Cir. 1978)); NLRB v. Gooch
Packing Co., 457 F.2d 361, 362 (5th Cir. 1972) (per curiam)
(“In close vote election situations the Board is required to
particularly and carefully scrutinize charges which in other
cases would constitute immaterial or insubstantial
objections to the election and, when the existence of hard
evidence of irregularities is supplied, a full hearing to get at
the truth should be accorded.”).
Trimm maintains that it has proffered “specific, detailed
evidence” in support of its objections regarding the
Boerckels’ agency status. The company described the
content and duration of the Boerckels’ comments, identified
the other employees involved, and presented significant
evidence probative of the Boerckels’ status as Union agents,
including the Union’s unfair labor practice charge and the
pre-election meeting. If the Boerckels were indeed Union
agents, the election must be set aside pursuant to the
Board’s decision in Milchem, Inc., 170 N.L.R.B. 362 (1968),
which announced a strict per se rule prohibiting agents of
the employer or union from having prolonged conversations
with voters in the polling place or waiting to cast their
ballots, without regard to the nature or impact of the
conversations. Id. at 362; see also, e.g., Bio-Med.
Applications of P.R., Inc., 269 N.L.R.B. 827, 829-30 (1984);
NLRB v. L & J Equip. Co., Inc., 745 F.2d 224, 235 (3d Cir.
1984). We note that in its application of Milchem the Board
follows the general maxim that “ ‘the law does not concern
itself with trifles,’ ” and accordingly has emphasized that
Milchem’s strict rule does not extend to the mere “chance,
isolated, innocuous comment or inquiry.” Milchem, 170
N.L.R.B. at 363; see also, e.g., Sawyer Lumber Co., 326
N.L.R.B. 1331, 1332-33 (1998). Here, however, there is no
question that these conversations were prolonged.
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According to Trimm, this is certainly adequate evidence
of a substantial and material factual issue regarding agency
status that, if resolved in its favor, would require that the
election be set aside under Milchem, particularly since the
election was so close. Trimm relies heavily on our decision
in NLRB v. J-Wood/A Tappan Division, 720 F.2d 309 (3d
Cir. 1983), in which we carefully applied the principles
stated above, and ultimately remanded to the Board after
holding that the Board had abused its discretion by failing
to conduct an evidentiary hearing on the issue of whether
a certain employee was an agent of the union. Accordingly,
it is worth examining this opinion in some detail.
In J-Wood, the union won the representation election by
a vote of 32-31. Id. at 311. The company filed objections
alleging that three employees (Eby, Eckley, and Ross), who
were organizers for the union, had threatened two other
employees. Id. The company offered to prove that the
organizers were “known throughout the plant as agents of
the Union,” and “supplied the Regional Director with an
article from a union publication expressly identifying Ross
as a member of the ‘plant committee’ during the organizing
drive.” Id.
The Regional Director conducted an investigation, which
“essentially confirmed the Company’s allegations
concerning the making of the statements.” Id. All three
employees, however, denied the threats and disputed that
they were members of an organizing committee. Id. at 312.
Largely based on the conclusion that Eby, Eckley, and Ross
were not union agents, the Regional Director rejected the
company’s request for a hearing and recommended that the
election be certified. Id. The Regional Director was
unconvinced by the union’s post-election identification of
Ross as a member of the plant committee, noting that Ross
denied it and that serving on an organizing committee is at
any rate insufficient to establish agency. Id. The Board
agreed. Id.
On appeal, the company argued that an evidentiary
hearing should have been held regarding the agency status
of the employees. With respect to Eby and Eckley, however,
the company had presented no evidence of agency, but had
only “indicated a willingness to offer proof.” Id. at 313.
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Because such an “offer” clearly does not satisfy the required
specific and nonconclusory proffer of evidence, we could
find no error in that part of the Board’s conclusion. Id.
With regard to Ross, however, the company had produced
specific, nonconclusory evidence — the union publication
naming him as part of the successful plant committee. Id.
at 312. We recognized the settled rule, noted above, that
simply being part of an organizing campaign or committee
is insufficient to establish agency, but found evidence of
something more in the union’s inclusion of a specific
reference to Ross as a member of the plant committee in its
published identification of those who had a significant role
in the election victory. Our discussion on this point is
instructive:
The question before the Regional Director was not
whether J-Wood had demonstrated Ross’s agency
status, but only whether the Company proffered
adequate evidence to show that the agency question
was a “substantial and material factual issue” under
Anchor Inns that, if resolved in its favor, would require
setting the election aside. We believe that evidence of
the Union’s post-election publication of Ross’s
membership in the organizing plant committee was a
relevant and highly probative item of evidence of
agency status that warranted an evidentiary hearing,
especially when the election results depended upon
only one vote.
Under Anchor Inns a party objecting to a representation
election must produce adequate evidence to show that
there is substance to its allegations and not mere
rhetoric. But none of our cases contemplate that an
employer is required to present sufficient evidence to
establish that the objections must be sustained before
it can obtain an evidentiary hearing. The whole
purpose for the hearing is to inquire into the
allegations to determine whether they are meritorious
. . . .
. . . . [I]t is unreasonable to expect the employer to
document its objections with the kind of evidence that
realistically could be uncovered only by subpoena and
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an adversarial hearing. All that Anchor Inns requires is
that the “objector’s proffer of evidence must prima facie
warrant setting aside the election” and may not be
“conclusory” or “vague” but must “point to specific
events and specific people.” J-Wood met this standard
by naming the specific person who made the
threatening statements and identifying the employee to
whom they were made, facts confirmed by the Regional
Director’s investigation, and by producing the union
article specifically identifying Ross as a member of the
plant committee “involved in the drive.” Thus, it was an
abuse of discretion for the Regional Director not to hold
a hearing to determine Ross’s status.
J-Wood, 720 F.2d at 315-16 (quotations and citations
omitted). J-Wood makes it clear that the question before the
Board is not whether the objecting party can show that it
will ultimately be able to prove its case, but only whether
there has been a sufficient showing, given the inherent
constraints on discovery, to raise a substantial and
material issue of fact that, if resolved favorably to the
objecting party, would warrant setting aside the election. Id.
We agree with Trimm that our decision here is controlled
by J-Wood, and that the Board abused its discretion by not
holding a hearing to determine the agency status of the
Boerckels. Like the company in J-Wood, Trimm has made a
nonconclusory proffer of evidence, including three affidavits
and the Union’s unfair labor practice charge, regarding
“ ‘specific events and specific people,’ ” J-Wood, 720 F.2d at
313-14 (quoting Anchor Inns, 644 F.2d at 296), which
clearly raises a substantial and material factual issue as to
the agency status of the Boerckels. Indeed, Trimm’s proffer
of evidence is arguably stronger than the one we considered
in J-Wood. There, the proffer consisted of a single piece of
evidence, the union publication issued after the election.
Here, the proffer consists of several relevant pieces of
evidence, such as the Union’s reference to the Boerckels as
“our two lead organizers” in the unfair labor practice
charge, the pre-election meeting between the Boerckels and
Union representatives, and the employee affidavits which
described the Boerckels as union “organizers.”
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This evidence raises serious questions. Did employees
know of the Union’s designation of the Boerckels as its
“lead organizers”? How many employees witnessed the
parking lot conversation between the Boerckels and Union
representatives? The evidence, although insufficient to set
aside the election outright, clearly raises the issue of actual
or apparent authority. Moreover, as noted, the resolution of
the agency issue in this case could be dispositive; if the
Boerckels were agents, the election must be set aside under
Milchem. Finally, as in J-Wood, because of the closeness of
the election, the Board was obligated to take particular care
in evaluating whether Trimm’s objections were potentially
meritorious.
This case can be distinguished from those in which we
have found no abuse of discretion in the Board’s failure to
conduct a hearing. See, e.g., St. Margaret, 991 F.2d at
1158; ARA Servs., 717 F.2d at 67. In ARA Services, the
union won the election 30-22, and the company filed
objections, which, in part, relied on the contention that
certain employees were union agents. 717 F.2d at 59-60.
The company’s proffer of evidence relating to agency,
however, consisted merely of two unverified, handwritten
statements by employees, one of which referred to two other
employees as “pro-union spokesmen,” and the other of
which referred to a promise made by “several of the pro
union girls,” an assertion the employee later partially
recanted. Id. at 59-62. The Regional Director’s investigation
disclosed no other evidence of agency, and, indeed, turned
up additional evidence strongly suggesting that the
individuals referenced were not union agents. Id. at 61-62.
On such a weak showing by the company, and in a
situation where the Union won by a relatively comfortable
margin, we found that the company’s proffer of evidence
“add[ed] nothing” to the regional director’s investigation,
and thus that the Board’s “decision to decide the
certification question on the record made by the regional
director [could not] be held to be an abuse of discretion.”
Id. at 67; cf. NLRB v. Herbert Halperin Distrib. Corp., 826
F.2d 287, 291 n.1 (4th Cir. 1987) (noting that in our
decision in J-Wood we “relied heavily on the closeness of
the vote,” and distinguishing our ruling there from a case
where the union “won by a large margin”).
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And, in our decision in St. Margaret, the company had
asserted that three days before the election, which the
union ultimately won by a vote of eleven to seven, the
union made material misrepresentations to employees. 991
F.2d at 1149-50. The company made a substantial proffer
of evidence and sought an evidentiary hearing. Id. at 1150-
51, 55. The Board, however, overruled the company’s
objections without a hearing, reasoning that under the rule
it had announced in Midland Nat’l Life Ins. Co., 263
N.L.R.B. 127, 133 (1982), an election could not be set aside
solely on the basis of a party’s misleading campaign
statements, like those at issue in St. Margaret. 991 F.2d at
1151. On appeal, we agreed that the union’s statements
were protected by the rule in Midland, and thus we rejected
the company’s argument that the Board had abused its
discretion by failing to conduct a hearing. Id. at 1158. No
hearing was necessary because the evidence did not create
any substantial, material issues of fact that, if resolved
favorably to the employer, would warrant setting aside the
election. Id. Even taking all of the company’s allegations
about the union’s misrepresentations as true, we found
that under the Midland rule those misrepresentations were
not a basis for setting aside the election. Id.
In ARA and in St. Margaret, no hearing was required
because none of the evidence proffered by the objecting
party actually supported a ground for setting aside the
election. By contrast, the evidence proffered by Trimm
supports its contention that the Boerckels were agents of
the Union, and, in turn, supports a ground for setting aside
the election — a violation of the Milchem rule.
Situations such as this, where the determination of a
single fact-based issue will be dispositive of the election’s
validity, clearly call for caution in the Board’s resolution of
that issue. In addition, we agree with the Court of Appeals
for the D.C. Circuit’s recent statement that “[i]n view of the
factual nature of [the] determination [of agency status], an
evidentiary hearing ordinarily will be required in order to
resolve a dispute about the relationship between a person
alleged to have interfered with a Board-supervised election
and one of the parties to that election.” AOTOP, LLC v.
NLRB, 331 F.3d 100, 104 (D.C. Cir. 2003). The closeness of
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the election results here created in the Board a duty to take
particular care in its evaluation of the company’s
objections. See St. Margaret, 991 F.2d at 1156; J-Wood, 720
F.2d at 315. Under such circumstances, the Board abused
its discretion in denying the request for an evidentiary
hearing.
III.
For the reasons set forth above, we conclude that the
Board abused its discretion by failing to grant Trimm’s
request for an evidentiary hearing to resolve material issues
of fact regarding the agency status of the Boerckel brothers,
we will grant Trimm’s petition for review, deny the Board’s
cross-application for enforcement, and remand to the Board
for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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