Petition for Review National Labor Relations Board Board Nos. 6-CA-15480 & 6-RC-8976.
Hunter, Higginbotham, Circuit Judges, and Giles,*fn* District Judge. Higginbotham, A. Leon, Circuit Judge, dissenting.
1. Medical Center of Beaver County, Inc. ("the Hospital") has petitioned for review of an order of the National Labor Relations Board ("the Board"). The Board ordered the Hospital to cease and desist from violating sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (a)(5) (1976), by refusing to bargain with District 1199P, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO ("the Union").*fn1 The Board has filed a cross-application for enforcement of its order. We have jurisdiction pursuant to 29 U.S.C. § 160(e), (f) (1976). Because we conclude that the Union was not properly certified as the exclusive bargaining representative of a designated unit of hospital employees, we will grant the Hospital's petition for review, and we will deny the Board's cross-application for enforcement of its order.
2. On March 10, 1981, the Union filed a petition with the Board's regional office seeking a representation election among the licensed practical nurses and certain technical employees of the Hospital. Pursuant to the parties' stipulation for certification upon consent election, the regional director conducted an election by secret ballot on May 15, 1981. Of the 285 unit employees who voted, 143 employees voted for the Union, and 133 employees voted against the Union.Thus the Union received a bare majority of the 285 votes cast. App. at 9, 633. Nine of the 285 ballots were challenged ballots. Because the number of challenged ballots was insufficient to affect the result of the election, however, the nine challenged ballots remained uncounted. See 29 C.F.R. § 102.69 (1982).
3. On May 22, 1981, the Hospital filed timely objections to the election because of the conduct of members of the Union's organizing committee on election day. The Hospital alleged, inter alia, that the election was tainted because the Union had kept a voter eligibility list, in violation of long-established Board policy, in order to record the names of unit employees who voted. The regional director ordered a hearing on the Hospital's objections. After a four-day hearing the hearing officer recommended that, although the case was close, the Hospital's objections should be overruled.
4. On April 30, 1982, the Board adopted the hearing officer's recommendation. The Board found that the Union had in fact maintained an unauthorized voter list, but concluded that such list-keeping had only a de minimis impact on the election. App. at 660-61. The Board accordingly certified the Union as the exclusive bargaining representative of the designated unit of licensed practical nurses and technical employees. Member Hunter dissented, reasoning that direct evidence and "compelling circumstantial evidence," app. at 665, precluded a finding of de minimis impact. He therefore concluded that the election should be set aside. App. at 663.
5. Following its certification by the Board, the Union asked the Hospital to bargain with it. When the Hospital refused, the Union filed the section 8(a)(1) and 8(a)(5) charge at issue against the Hospital. The Hospital admitted that it had refused to bargain with the Union, but it asserted that it did so in order to challenge the Board's decision to overrule the Hospital's objections and to certify the Union.*fn2 The Board found no grounds which would warrant a reexamination of its certification decision and accordingly granted summary judgment in favor of the Union. It ordered the Hospital to cease and desist from refusing to bargain with the Union. Member Hunter dissented for the same reasons expressed in his dissent from the Board's certification decision.
6. The Hospital filed this petition for review, and the Board filed a cross-application for enforcement of its order. The only issue which we address in this case is whether "the Board's determination regarding the impact of the [list-keeping] is supported by substantial evidence on the record considered as a whole." Jamesway Corp. v. NLRB, 676 F.2d 63, 69 (3d Cir. 1982).*fn3 To determine whether the Board's de minimis determination is supported by substantial evidence, we must consider the facts surrounding the election in closer detail.
7. The facts in this case are largely undisputed. The election was held in a voting room located inside the hospital complex. The actual voting took place during two sessions, the morning session which ran from 6:00 a.m. to 9:30 a.m. and the afternoon session which ran from 2:00 p.m. to 5:30 p.m. There are only two entrances through which employees could have gained access to the voting area. One is the doctors' entrance which is located approximately forty-five feet down a corridor from the voting room. A sidewalk connects the doctors' entrance to a parking lot, and that entrance was more convenient for those employees who were not scheduled to work during the polling period and who came to the hospital only to vote. The other entrance, the employees' entrance, is located on the floor above the voting room. It is generally used by employees who are scheduled to work because it is located near the time clock.
8. It is undisputed that members of the Union's organizing committee decided to station themselves on election day at those two entrances in order to provide "moral support" for the Union and in order "to instill confidence" in employees who were coming to vote. App. at 77, 636. During the morning voting session two organizing committee members, Shirley Olshesky and Madeline Berninger, stationed themselves at the employees' entrance. During the afternoon voting session, two organizing committee members and a unit employee stationed themselves at the employees' entrance, and four organizing committee members and the same employee stationed themselves at the doctors' entrance for varying periods of time. Also during the afternoon session, Union Vice-President ...