508 F.2d 24 (8th Cir. 1974), 74-1289, N.L.R.B. v. Payless Cashway Lumber Store of South St. Paul, Inc.

Docket Nº:74-1289.
Citation:508 F.2d 24
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAYLESS CASHWAY LUMBER STORE OF SOUTH ST. PAUL, INC., Respondent.
Case Date:December 19, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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508 F.2d 24 (8th Cir. 1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

PAYLESS CASHWAY LUMBER STORE OF SOUTH ST. PAUL, INC., Respondent.

No. 74-1289.

United States Court of Appeals, Eighth Circuit

December 19, 1974

Submitted Oct. 14, 1974.

Richard A. Cohen, Atty., N.L.R.B., Washington, D.C., for petitioner.

James M. Samples, Faegre & Benson, Minneapolis, Minn., for respondent.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

The National Labor Relations Board asks this Court to enforce a bargaining

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order against Payless. Payless defends on the ground that the Board's certification of the Union 1 is invalid. We refuse to enforce the Board's order because we believe that remarks made by a public official at a Union election-eve meeting were coercive and so closely related to the election that they had a probable effect on the employees' actions at the polls.

An election by secret ballot was conducted among certain Payless employees on August 15, 1972. The Union won the election by a fourteen to nine vote. A week later, Payless filed timely objections to conduct affecting the results of the election. It alleged, in substance, that: (1) the Union misstated material facts to which the company had no opportunity to reply; (2) the Union threatened and intimidated employees; (3) a prominent local person interfered with the election and threatened violence to an employee's person and property; and (4) the election was conducted in an atmosphere of fear, coercion and misrepresentation. The Acting Regional Director conducted an investigation and issued his report and recommendations in which he overruled objections relating to alleged misrepresentations and directed that a hearing be held on the following objection:

At the (Union's) meeting with employees on the night of August 14, an official of the City of South St. Paul (the Acting Mayor, Michael Verderosa) was introduced to the employees by a representative of the (Union) and made a short speech. The city official is alleged to have asked whether a particular employee favored the Union, and then to have stated that this employee had better favor the Union or he would slit his tires. The city official denies making these remarks.

Sixteen witnesses, including Verderosa, testified at the hearing. The Hearing Officer found that Verderosa had attended the meeting and that prior to its start, he had engaged in a conversation with Emil Forrester, a former employee of Payless. He summarized the testimony of employee witnesses as follows:

* * * The testimony above reveals that a great deal of confusion exists with regard to what Mr. Verderosa actually said in his conversation with Emil Forrester.

Stover, Steven Schmitt, Walls, Anderson, Schwingle, Dorsey, Turner, Rossing, Klug, Reid, Brown and Mertens either did not overhear Verderosa's conversation with Forrester or recalled very little of the conversation referred to above. There, I find their testimony of little probative value.

This leaves only the testimony of Kraemer, Thomas Schmitt and Verderosa. Kraemer could not recall the exact words used by Verderosa or recall the nature of the conversation immediately preceding or following his version of the conversation. For this reason, as well as the demeanor of this witness while testifying, I do find his testimony...

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