NLRB v. Lamar Electric Membership Corporation

• Decision Date: 22 June 1966
• Docket Number: No. 22444.,22444.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAMAR ELECTRIC MEMBERSHIP CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 505 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAMAR ELECTRIC MEMBERSHIP CORPORATION, Respondent.

No. 22444.

United States Court of Appeals Fifth Circuit.

June 22, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., for petitioner.

Alexander E. Wilson, Jr., Alexander E. Wilson, III, Atlanta, Ga., Harvey J. Kennedy, Jr., Barnesville, Ga., for respondent.

Before GEWIN and BELL, Circuit Judges and HUGHES, District Judge.

GRIFFIN B. BELL, Circuit Judge.

The Board seeks enforcement of its order finding that Respondent violated § 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the union¹ certified by the Board as the exclusive bargaining representative of Respondent's employees in a particular unit. 29 U.S.C.A. § 158(a) (5) and (1). The refusal to bargain was the means chosen by Respondent to test the validity of the representation proceeding which resulted in the certification of the union. We conclude that Respondent should have been granted a hearing on its contention that the union was assisted in its organizational campaign by the advocacy of a supervisory employee. Thus we deny enforcement.

The background facts include a representation petition filed by the union with the Board on April 23, 1963, and a motion by Respondent, filed on May 20, 1963, to dismiss that petition. Respondent's motion, inter alia, contended that James E. Stallings was a supervisor and that as such he had attended union meetings with the employees of Respondent during the organizational campaign, that he transported some of the employees to the meeting, and that he used his influence as a supervisor to obtain signatures on the union authorization cards which were being sought. It was later determined that Stallings was a supervisor but it is clear that Respondent knew of the activity of Stallings for the union, and the record is devoid of any showing whatever that Respondent attempted to dissipate Stallings' efforts.

We held in NLRB v. Air Control Products of St. Petersburg, Inc., 5 Cir., 1964, 335 F.2d 245, that advocacy of the union by supervisory personnel, unknown to the employer, is cause for annulment of the election. However, we also said that where the employer knows of the advocacy and takes no steps to dissipate its effect, such advocacy may not be used as a basis for setting aside the election. The reasoning was that the employer in such case would be taking advantage of wrongdoing for which he had an operational responsibility. It was in his power to remedy the situation. We recently applied this rule in a case involving the known union advocacy of five supervisory employees. NLRB v. Douglas County Electric Membership Corporation, 5 Cir., 1966, 358 F.2d 125. There the employer acted to remedy the situation. We held that the conduct of the supervisors, when viewed in the light of the knowledge of the employer of their conduct and the steps taken by the employer to dissipate the effect of their conduct, was not such as would afford a basis for the employer challenging the election; and hence it was not error to deny the employer a hearing on the challenge.

The rule that an employer is barred by knowledge of the conduct of the supervisor and subsequent inaction is applicable here. The Board did not commit error in denying Respondent a hearing on its contest of the election based on the conduct of supervisor Stallings. Respondent knew of his conduct and made no effort to counteract his conduct. NLRB v. Air Control Products, Inc., supra.

The situation with respect to Superintendent Potts is quite different. Mr. Potts was the number two man in Respondent's organization. It was stipulated that he was a supervisor. He was in charge of all of Respondent's outside employees. The election was to be held on August 7, 1963. On the night of August 6, counsel for Respondent wired the Regional Director of the Board that it was refusing to participate in the election because "Superintendent Potts * * * tonight joined union organizer Robinson in coercing * * *" employees to vote for the union. The election was held the next day off the company premises. The union prevailed and Respondent challenged the election by filing written objections.

The Regional Director made an investigation of the election and filed a decision based thereon. The rules of the Board, 29 CFR 102.69, provide for a hearing on a challenge to an election where substantial and material factual issues are raised. We held in NLRB v. O. K. Van Storage, Inc., 5 Cir., 1961, 297 F.2d 74 that an objecting party, to be entitled to a hearing on its objections to an election, must supply the Board with specific evidence which prima facie would warrant setting aside the election. See also NLRB v. Vulcan Furniture Manufacturing Corp., 5 Cir., 1954, 214 F.2d 369, cert. den., 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687. A review of the evidence that was before the Regional Director is thus indicated.

We are not faced with any contention that Respondent knew of any union advocacy on the part of Superintendent Potts prior to the eve of the election. Mr. Potts attended a meeting of the employees on August 6, the day preceding the election. The meeting was under the sponsorship of the union....