GENERAL ELECTRIC CO., SPECIALTY CONTROL DEPT. v. NLRB

• Decision Date: 20 September 1967
• Docket Number: No. 11147.,11147.
• Citation: 383 F.2d 152
• Parties: GENERAL ELECTRIC COMPANY, SPECIALTY CONTROL DEPARTMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Electrical, Radio and Machine Workers of America, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

383 F.2d 152 (1967)

GENERAL ELECTRIC COMPANY, SPECIALTY CONTROL DEPARTMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent United Electrical, Radio and Machine Workers of America, Intervenor.

No. 11147.

United States Court of Appeals Fourth Circuit.

Argued June 1, 1967.

Decided September 20, 1967.

Francis V. Lowden, Jr., Richmond, Va. (R. Kenneth Wheeler, Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., and Martin F. Conner, III, Cincinnati, Ohio, on brief), for petitioner.

John D. Burgoyne, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Atty., National Labor Relations Board, on brief), for respondent.

Frank J. Donner and Robert Z. Lewis, New York City, on brief, for intervenor, United Electrical, Radio and Machine Workers of America (UE).

Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

After seventeen months of intense campaigning, a consent election was held on May 7, 1965, among production and maintenance employees at General Electric's Specialty Control Department plant in Waynesboro, Virginia. There were 531 votes for the Union,¹ nine votes for an intervening union,² 443 votes against the unions, and twenty-eight void and challenged ballots. The Company filed timely objections to the election. After its contentions were rejected, the Company refused to bargain with the certified Union and sought judicial review of the Board's findings.

The Company has abandoned all but two of its original objections to the election. They are based on alleged Union misrepresentations. The first statement consists of a single sentence in a sixteen-page Union booklet and reads, "In fact the janitors in Canada get more money than skilled employees at GE Waynesboro."³

The Board assumed for purposes of its decision that the statement was a material misrepresentation which affected the outcome of the election.⁴ The Board ruled, however, that the election result should stand since there was an adequate opportunity for the Company to reply before the election. Compare NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir. April 6, 1967).

We have made a careful review of the record and reject the Company's position that there was no substantial evidence on which the Board could find that it had an opportunity to make an effective reply. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Company's brief concedes there is substantial evidence to support the Board's finding that the booklet was distributed to employees at the beginning of the morning shift on May 5, two days prior to the election. Its position is that distribution to employees does not necessarily mean that the booklet came to the Company's attention. But Manager of Employee Relations Tulloch testified that during the entire seventeen months campaign period he had been able to obtain from the plant cafeteria Union literature on the day of distribution. The Board could permissibly infer that the cafeteria source did not suddenly run dry, and that discarded Union literature could have been obtained simply by picking it up — as had been the Company's established practice.

The comparative wages of GE employees at Waynesboro had been a principal issue throughout the Union campaign and, as the Board observed, since the Company had already replied to similar statements about wages of Baltimore janitors "it could be expected to be on the alert to consider the same argument * * * as soon as it was publicized."

The second alleged misrepresentation appeared in Union literature distributed on May 6, the eve of the election, and stated that:

"WHY NOW?

"For over one year UE has passed out leaflets without interference. Yesterday the police stopped UE from completing the distribution. Earlier several company supervisors threatened us with police interference and now they have done so. How desperate can GE be to resort to keeping information from GE workers? UE will try to get you the information as best we possibly can."

In its reply brief filed with this court, the Company belatedly asserts that its objection to this misrepresentation raised material issues of fact requiring a hearing. Although not required to do so, we have reviewed the record, and conclude that no hearing was required since the Board in overruling this objection assumed the facts to be as stated by the...