EDS IDAB, Inc. v. N.L.R.B., EDS-IDA

Citation666 F.2d 971
Decision Date04 February 1982
Docket NumberEDS-IDA,INC,No. 80-5785,80-5785
Parties109 L.R.R.M. (BNA) 2653, 93 Lab.Cas. P 13,220 , Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. . Unit B *
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Mershon, Sawyer, Johnston, Dunwoody & Cole, William R. Radford, John B. Gallagher, Miami, Fla., for petitioner, cross-respondent.

Elliott Moore, Deputy Associate Gen. Counsel, Lee W. Jackson, Atty., NLRB, Washington, D. C., for respondent, cross-petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before MORGAN, TJOFLAT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

The petitioner, EDS-IDAB, Inc. (herein referred to as the "Company"), filed its petition seeking review in this court of the order of the National Labor Relations Board (herein referred to as the "Board") ordering the Company to bargain with International Association of Machinists and Aerospace Workers, AFL-CIO (herein referred to as the "Union"). The Board filed a cross-application seeking enforcement of its order. We deny enforcement, and remand for a hearing.

The Board conducted an election among the employees of the Company, which resulted in 44 ballots cast for the Union and 37 against. There were two challenged ballots, but no action was taken with respect to the challenged ballots because they were insufficient in number to affect the results of the election. The Company filed timely objections to the election. The Regional Director for the appropriate region of the Board conducted an ex parte investigation, and rendered his report concluding that the Company's objections were without merit and recommended that they be overruled. No hearing was held. The Company filed timely exceptions to the Regional Director's report and requested the Board to either set aside the election or order the Regional Director to conduct a hearing. The Board adopted the Regional Director's findings and recommendations and certified the Union. In order to secure judicial review of alleged misconduct during and preceding the election, the Company refused to bargain, and in the proceedings that followed, the Board granted summary judgment ordering the Company to bargain with the Union, which order is now before us for review.

The Company argues that the election should be set aside because of certain improper electioneering and certain pre-election threats and violence. In the alternative the Company argues that the Regional Director should have held an evidentiary hearing because the Company raised substantial and material issues of fact with respect to improper electioneering and pre-election threats and violence. We decline to set aside the election, but we agree that a full hearing was required and therefore we deny enforcement of the Board's order and remand for a hearing.

The following issues merit some discussion: (1) whether a hearing was required because the Company presented specific evidence of threats and violence which raises substantial and material issues of fact as to whether such threats and violence were sufficient to destroy the atmosphere necessary to the exercise of a free choice in the election; (2) whether the Regional Director, in considering whether the Company made a sufficient showing to be entitled to an evidentiary hearing, could properly disregard evidence of threats and violence solely because of the hearsay form of the evidence; and (3) whether a hearing was required because the Company presented specific evidence of improper electioneering which, when considered cumulatively with the evidence of threats and violence, raises substantial and material issues of fact as to whether the atmosphere necessary to the exercise of a free choice was destroyed. 1

The relevant facts will be stated with our discussion of each issue.

1. Atmosphere of Fear and Coercion

We consider first the Company's argument that the Board improperly declined to order a hearing on the factual issues relating to the threats and acts of violence asserted in the Company's affidavits. In a recent and very similar case, NLRB v. Claxton Mfg. Co., Inc., 613 F.2d 1364 (5th Cir.), clarified 618 F.2d 396 (1980), we carefully enunciated the appropriate standards to be applied in determining whether a hearing is required in a case such as this. Applying those standards, which we need not repeat here, we conclude that a hearing was clearly required in the instant case.

Stated briefly, the Company's affidavits included testimony of two witnesses, Hall and Vigil, that employee Contreras came to them in fear because of a threat. Contreras said to the witnesses that a pro-union employee had lifted up his shirt to reveal a gun and threatened: "If the union doesn't get in, you'll get yours after the election and Julio Blanco is going to get his too." This incident was confirmed by the affidavit of another witness, Carmanate, who swore that Contreras telephoned him in fear reporting the same incident. The incident is also confirmed by subsequent conversations in which Contreras confided in Vigil his fear of retaliation against him for having reported the incident to the Company.

Another incident involving Contreras was mentioned in the affidavit of witness Medina. Medina said that an employee had told him that pro-union employee Jorge had punched Contreras in the eye. Medina then saw that Contreras did in fact have a black eye, and asked Jorge about the incident. Jorge did not deny the incident, but claimed it was an accident.

The witness Vigil also testified concerning threats to two additional employees, Freyre and Alimany. After hearing rumors of threats to Freyre and Alimany, Vigil was assigned by the Company to investigate. During the investigation, Freyre told Vigil that he was upset with some employees who had been harassing others to vote for the Union. Freyre also told Vigil: "Off the record-I will never tell anyone about the threats to me or others because I have to come back and work with these guys every day." Vigil's affidavit indicates that Alimany told him essentially the same thing.

In addition, there was evidence that an employee's tire was spiked, and there was evidence of rumors concerning the above-mentioned and other incidents sufficient to raise a substantial issue as to whether there was widespread knowledge of the threats amongst the employees.

We conclude that the Company's prima facie evidence related to specific events and specific people and raised substantial and material issues of fact as to whether the threats and violence were sufficient to destroy the atmosphere necessary to the exercise of a free choice in the election. NLRB v. Claxton Mfg. Co., Inc., supra. Accordingly, we conclude that a hearing was required.

2. Hearsay

The Board argues that the Regional Director properly discounted much of the foregoing evidence of threats and violence because of its hearsay nature. In support of its contention that hearsay is properly discounted, the Board cites NLRB v. O.K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961), United States Rubber Co. v. NLRB, 373 F.2d 602 (5th Cir. 1967), and NLRB v. Sauk Valley Manufacturing Co., Inc., 486 F.2d 1127 (9th Cir. 1973). The Board's reliance upon each case is misplaced. The O.K. Van Storage case contains only dictum suggesting that the hearsay status of evidence at this stage of proceedings to set aside an election makes the competence of such evidence doubtful. Similarly, United States Rubber Co. contains only dictum suggesting that equivocal hearsay might not be competent evidence at this stage. The Ninth Circuit Sauk Valley Manufacturing Co. case is also dictum indicating that hearsay, the credibility of which is questionable, might properly be discounted. The dicta in the two Fifth Circuit cases is, of course, not binding upon us. We note also that in each case, the dicta is hardly more than a passing reference, and thus is entitled to very little persuasive force. 2

The parties have cited no Fifth Circuit cases squarely addressing the hearsay issue before us, and our research has uncovered none. 3 Recognition of the posture of this case will facilitate a proper resolution of this question. The Company was required to, and did, file an objection to the election within five days after the tally of the ballots. The objection properly contained only a short statement of the conduct which allegedly affected the outcome of the election, and was supported by affidavits. The hearsay at issue here appears in the affidavits submitted by the Company. A party objecting to an election, whether that party be the Company or the Union, must rely upon the voluntary cooperation of witnesses at this stage of the proceedings. NLRB v. Nixon Gear, Inc., 649 F.2d 906, 913 (2nd Cir. 1981). It is apparent that such voluntary cooperation often will be difficult or impossible to obtain. Either an objecting employer or an...

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