N.L.R.B. v. S. Prawer & Co.

• Citation: 584 F.2d 1099
• Decision Date: 27 September 1978
• Docket Number: No. 78-1030,78-1030
• Parties: 99 L.R.R.M. (BNA) 3008, 84 Lab.Cas. P 10,861 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. PRAWER & COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1099

584 F.2d 1099

99 L.R.R.M. (BNA) 3008, 84 Lab.Cas. P 10,861

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. PRAWER & COMPANY, Respondent.

No. 78-1030.

United States Court of Appeals, First Circuit.

Argued June 5, 1978.

Decided Sept. 27, 1978.

Jesse I. Etelson, Atty., N.L.R.B, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., Washington, D. C., were on brief, for petitioner.

Harold N. Mack, Boston, Mass., with whom Philip J. Moss, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The National Labor Relations Board ("Board" or "NLRB") seeks enforcement of its order that S. Prawer & Co. ("Company") cease and desist from certain unfair labor practices found by the Board, that it bargain with the Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO ("Union") upon request, and that it post appropriate notices. The Company alleges that the Board's finding of section 8(a)(5) and (1), 29 U.S.C. § 158(a)(5) and (1), violation does not find substantial evidence in the record as a whole and that the Board erred in not accepting into evidence certain statements by one of the employees and in failing to hold an evidentiary hearing.

On October 5, 1977, the Union requested the Company to recognize and bargain with it. The Company refused. The Union had been certified as the bargaining representative pursuant to an election held on March 19, 1976. The Company had filed timely exceptions to the election alleging that the election was invalid (1) because of a rumor circulated to twelve of fourteen employees the morning of the election to the effect that the plant was moving to a location twenty-five or thirty miles away; (2) because the Union had allegedly misrepresented to employees that a former employee had been terminated for union activities; and (3) that the Union had circulated, nine days prior to the election, a news letter purportedly misrepresenting a claim that it had negotiated a $.60 per hour raise and improvements in vacation and sick pay on behalf of members employed by Ryder Truck Rental of Portland. Following an investigation, the Regional Director found against the Company on all three exceptions. The Company took exceptions to the Director's report, which the Board rejected in September, 1977, when it adopted the findings of the Regional Director and certified the election. The Company refused to bargain with the Union, persisting in its claim that the election results should be overturned. Subsequent unfair labor practice charges were filed, charging the Company with refusal to bargain. The Board found against the Company on the unfair labor practice charges and now seeks enforcement of its orders by this court.

While many cases may be decided without detailed separate analysis of the issues to be reviewed, there is a two-tiered process involved: we review the fact findings of the Board in its petition for enforcement of its orders on the unfair labor practices complaint pursuant to the standard articulated in the statute, 29 U.S.C. § 160(e), and enunciated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), as to whether the Board order finds substantial evidence in the record as a whole. Since Board rulings on the certification challenge are not reviewable directly, A.F.L. v. N.L.R.B., 308 U.S. 401, 406, 60 S.Ct. 300, 84 L.Ed. 347 (1940), but only to the extent that the unfair labor practices complaint rests upon them, Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), our standard of review on that question is restricted to an analysis of whether the Board abused its discretion in certifying the election. N.L.R.B. v. O. S. Walker Co., Inc., 469 F.2d 813, 817 (1st Cir. 1972). We also determine whether the Company's assertion that it was denied due process has merit. Pittsburgh Plate Glass Co. v. N.L.R.B., supra, 313 U.S. at 154-155, 61 S.Ct. 908.

The Regional Director investigated the claim that a plant relocation rumor had so charged the atmosphere immediately preceding the election that the employees were thwarted in the attempted exercise of their free choice in selecting Vel non a bargaining representative. N.L.R.B. v. A. G. Pollard Co.,393 F.2d 239, 241 (1st Cir. 1968). Eleven or twelve of fourteen voting employees attended a meeting the morning of the election. One of the employees stated that he had heard that the Company was going to relocate to a location twenty-five or thirty miles away. Another employee, the brother-in-law of the Company's warehouse manager, said that he knew this to be so. Several employees then commented that they would be unable to remain with the Company should the move take place. The Regional Director ruled that this rumor was not sufficient to set aside the election. He responded to the Company's assertion that such a rumor would have the effect of causing employees to vote for the Union in hopes that the Union would be able to negotiate favorable severance pay or moving expense provisions by noting that as reasonable an inference could be drawn that employees would not vote for the Union in the hopes of encouraging the Company to remain at its present location. No offer of proof was tendered by the Company to show that, in fact, any employee had changed his vote because of the rumor. ¹ The effect of such a rumor is ambiguous at best. In the absence of an offer of proof, the investigator was entitled to draw any reasonable inference from the evidence. N.L.R.B. v. O. S. Walker Co., Inc., supra, 469 F.2d at 819. The Board concluded, and we affirm, that the Regional Director's inference was not unreasonable. The burden rests with the party urging that an election be set aside. That burden, as we have noted elsewhere, is a heavy one, Solon Mfg. Co. v. N.L.R.B., 544 F.2d 1108, 1111 (1st Cir. 1976), which the Company here has failed to shoulder. ²

The Regional Director determined that the Company's second allegation concerning the termination of a former employee involved no misrepresentation on the part of the Union. The former employee had resigned more than one month prior to the election and other employees quickly learned of the fact. There was some feeling that he had resigned under pressure by the Company. However, there was no evidence that the Union had claimed that he had been terminated for union activities. Rather, the evidence indicated the Union stated that, If he had been terminated for union activity, the Union would do something on his behalf. Two days before the election, the Union filed an unfair labor practice in relation to the resignation. Thereafter, the charge was dismissed by the Regional Director for insufficient evidence. The Board affirmed the Regional Director's finding that there was no evidence to suggest that the Union had misrepresented the resignation and further stated that, even had the Union misrepresented the situation, this was an instance where the employees would have no reason to believe that the...