On Petition for Review of an Order of the National Labor Relations Board Board Docket No. 22-CA-9695
Garth and Sloviter, Circuit Judges and Lord, District Judge*fn*
For the second time, the election held at Vitek Electronics Inc. on June 7, 1979 is before us for review. After Vitek's first visit, Vitek Electronics, Inc. v. NLRB (Vitek I), 653 F.2d 785 (3d Cir. 1981), this Court remanded the case to the Regional Director, stating
The case will be remanded with direction to the Regional Director to conduct a hearing on the issues of the alleged misrepresentation and for appropriate findings on the need for any further requested hearings prior to any recommendation to certify the results of the election.
The Board thereafter adopted the findings of an Administrative Law Judge, rejected Vitek's objections to the election, and issued a new bargaining order. Both Vitek and the union filed petitions for review; the Board cross petitioned for enforcement.
Vitek challenges the Board's action in failing to remand the case to the Regional Director for a representation hearing as we had ordered in our remand direction. Vitek has supplemented the record before this Court with affidavits indicating that the Edison, New Jersey plant to which the Board's bargaining order was specifically directed, no longer exists and that no employees remain at that facility. Vitek therefore contends that this case is moot.
We hold that neither the case nor the appeal is moot. While we are disturbed by the Board's actions taken in derogation of our earlier remand order, we will not grant Vitek's petition for review on that ground as conclude that Vitek was not thereby prejudiced. We also conclude that substantial evidence supports the order of the Board.
Accordingly, we will enforce the bargaining order, but only to the extent that it requires bargaining over the effects of closing, the sole live issue which remains.
The International Union of Electrical Employees ("the Union" or "IUE") and Vitek ("the Company") stipulated to hold a consent election. The election took place on June 7, 1979. At this election, the Union prevailed, by 25 votes: 70 votes were cast for the Union, 45 votes were cast against the Union. Vitek filed timely objections with the Regional Director, alleging both Union misrepresentation and Union intimidation during the campaign period.
The alleged misrepresentations consisted of leaflets, one of which claimed that in area unionized plants (other than Vitek), wages were "increased regularly throughout the year, to keep pace with "the increased cost of living. Another leaflet claimed that Vitek wages were among the lowest in the area, that seniority "meant nothing" in promotion and overtime decisions, that the plant failed to take adequate safety precautions against carbon monoxide fumes, that workers made ill by such fumes lost pay, and that Vitek lacked appeal procedures for employees who were discharged.*fn1
The alleged acts of intimidation consisted of alleged threats said to have been made by union supporters, and an incident between two employees in which one employee wielded a knife against another employee.
Originally, the Regional Director conducted an investigation and, without holding a hearing, recommended that the objections be overruled. On December 14, 1979, the Board issued an order certifying the Union as the collective bargaining representative of Vitek's employees. In order to contest this ruling, Vitek refused to bargain, and the Union filed an unfair labor practices charge.*fn2 General Counsel for the Board issued a complaint and filed a motion for summary judgment. Vitek answered, asserting its election objections as a defense. The Board granted General Counsel's summary judgment motion. Vitek then took its first appeal to this Court.
This Court remanded the case, finding that Vitek's affidavits had established a prima facie case for setting aside the election, based on the alleged misrepresentations,*fn3 thus requiring a hearing on Vitek's objections. Significantly, the court indicated in two separate passages in its opinion that the hearing before the Regional Director was to be "prior to any recommendation to certify the results of the election." 653 F.2d at 795. See also id. at 788 (because substantial material factual issues were disclosed, the Regional Director or the Board was required to conduct an evidentiary hearing prior to certification.)
On remand, the Board initially complied with our mandate. On October 15, 1981, a Board order issued which directed the Regional Director to conduct the court-ordered hearing before a hearing officer with respect to the validity of Vitek's objections. Six days later the Board issued a second order which amended its earlier order and directed a hearing before an Administrative Law Judge. NO explanation appears in the record why the Board changed its course and ignored this Court's order to conduct a representation hearing.*fn4 The hearing ordered by the Board was an unfair labor practice hearing, based on Vitek's refusal to bargain, rather than a representation hearing based on Vitek's objections to election conduct.
The Administrative Law Judge issued a decision and bargaining order in favor of the Union. He also rejected claims of intimidation, finding testimony of union threats not to be credible. The Administrative Law Judge found that the incident involving employees Anthony Pollard and Rudy Newsome, in which Newsome pulled a knife on Pollard during a scuffle was neither threatening nor intimidating conduct motivated by pro-union sentiment.
As to the representations that Union negotiated contracts incorporated cost-of-living increases that "keep pace with inflation", the Administrative Law Judge found that employees would not interpret "keep pace with inflation" to mean that wages would track inflation exactly, but rather than wage rates subject to such contracts were increased regularly to mitigate the effect of inflation, as was in fact the case under other IUE contracts. The Administrative Law Judge also held that Vitek had not refuted the substantial truth of the Union representation that Vitek's wages were the lowest in the area. similarly, the Administrative Law Judge found the Union representations as to seniority rights and the carbon monoxide poisoning incident to be substantially accurate.
The NLRB affirmed the Administrative Law Judge's order on January 12, 1984. We have jurisdiction over a petition for review of a bargaining order under 29 U.S.C. § 160(f), and over the application for enforcement under 29 U.S.C. § 160(e).
Vitek has submitted an affidavit directly to this Court, stating that Vitek's Edison, New Jersey facility (the only facility covered by the bargaining order) has been permanently closed and no longer employs any member of the bargaining unit. The first issues we must thus address are whether the appeal should be dismissed as moot, see De Funis v. Odegaard, 416 U.S. 312, 40 L. Ed. 2d 164, 94 S. Ct. 1704, (1974); NLRB v. Globe Security Systems Inc., 548 F.2d 1115 (3d Cir. 1977), or whether the Board's order should not be enforced as futile, see ABC Trans-National Transport, inc. v. NLRB, 642 F.2d 675 (3d Cir. 1981), implicitly overruled on other grounds in First National Maintenance Corp. v. NLRB, 452 U.S. 666, 69 L. Ed. 2d 318, 101 S. Ct. 2573 (1981).
In the context of enforcement of bargaining orders, the doctrines of mootness and futility are closely related. A petition for enforcement of a general bargaining order is moot where the bargaining unit no longer exists, and the order can be enforced neither as a "tag end" order against the defunct firm, nor against a successor firm. Globe Security Services, supra, 548 F.2d at 1117. A finding of mootness would negate the "case or controversy" required for jurisdiction in this court. See De Funis v. Odegaard, supra.
Under the futility doctrine announced in ABC Trans-National, this Court will not enforce an NLRB order specifically directing an act that cannot be performed, In ABC we declined to enforce a Board order specifically directing an employer to bargain over the decision to close the operating location of the bargaining unit despite our finding that the order was proper.*fn5 We denied enforcement upon a finding that an order directing an employer to bargain over the decision to close a plant was futile where the plant was already closed and was not to be reopened. ABC presented no question of bargaining over the effects of closing a plant, as the employer there had offered in good faith to bargain over "effects".
The situation presently before us is significantly different from the situation presented in the mootness and futility cases, however. While, as in Globe and ABC, the plant location comprising the bargaining unit had closed, unlike Globe and ABC, here, there ...