Sioux Products, Inc. v. N.L.R.B.

• Decision Date: 24 March 1983
• Docket Number: No. 81-2728,81-2728
• Citation: 703 F.2d 1010
• Parties: 112 L.R.R.M. (BNA) 3219, 97 Lab.Cas. P 10,054 SIOUX PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1010

703 F.2d 1010

112 L.R.R.M. (BNA) 3219, 97 Lab.Cas. P 10,054

SIOUX PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-2728.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 1982.

Decided March 24, 1983.

George P. Blake, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for petitioner.

Michael Fischl, Elliott Moore, N.L.R.B., Washington, D.C., for respondent.

Before PELL, BAUER and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

This might be referred to as the "Smiling Face" ballot case. Much as in the nursery rhyme that "for lack of a nail a kingdom was lost", here the insertion of a "smiling face" on one of 105 ballots in a union representation election, together with another signed ballot, have cast in doubt the validity of the entire election.

The National Labor Relations Board ("Board") applies pursuant to Sec. 10(e) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e) (1976) ("Act"), for enforcement of its bargaining order, 258 N.L.R.B. 287 (1981), issued on September 25, 1981 against Sioux Products, Inc. ("Company"). The Company petitions to review that order. For the reasons stated below, we deny enforcement and remand the case to the Board for further proceedings in accordance with this opinion.

I.

The dispute arises from a representation election held on February 1, 1980 at the Company's Addison, Illinois, facility where plastic injection molding parts are made. Of the 105 ballots cast, 52 unchallenged ballots were cast for Local 707 of the National Production Workers Union ("Union"), 44 unchallenged ballots were cast against the Union, 7 ballots were unopened due to challenges by the Union on the basis of voter eligibility, and 2 ballots which had been marked with an "X" in the "No" square subsequently were ruled void by the Regional Director because of extraneous markings on the ballots.

The first of the latter two was invalidated by the Board agents who conducted the election because the voter had signed her name on the ballot; the other was invalidated, over the Company's protest, by the Regional Director because an employee had sketched a smiling face under the "X" in the "No" box (See Exhibit A appended to this opinion). Since invalidation of the 2 ballots left the Union with a majority of valid ballots cast, the Regional Director did not rule on the 7 challenged ballots. Under the Board's challenge procedure, ballots are cast but not counted pending future determination of their validity. The Regional Director, however, did order a hearing on the Company's objection that Board agent misconduct skewed the election results. After two days of hearings, the Hearing Officer recommended overruling the objection and sustaining the election result. The Board adopted the Hearing Officer's recommendation.

After the Board certified the Union as the bargaining representative of the Company's production and maintenance employees at its Addison facility, the Company refused to bargain with the Union. The Company refused to bargain on the ground of the alleged impropriety of the certification. It asserted, in its answer to the General Counsel's complaint and it contends on this review, that the election should be set aside due to the misconduct of Board agents before, during, and after the election. Second, it asserted, and continues to do so on this review, that the Board erred in invalidating the two disputed ballots with the extraneous markings. Since the validity of either one of the ballots might leave the Union short of a majority if the other 7 challenged votes were counted and were votes against the Union, the Company argues that the other 7 ballots must be tallied on remand.

We hold that substantial evidence in the record supports the Board's determination that Board agents' misconduct did not tarnish the election. ¹ We further hold, however, that the Board improperly invalidated one of the disputed ballots. Accordingly, we remand the case to the Board for a determination of whether the 7 challenged ballots should be tallied.

II.

Turning first to the issue of alleged Board agent misconduct, the Company asserts that the Board agents who supervised the election, particularly agents Paula Goodgal and Craig Wilson, manifested such a bias in favor of the Union that the "laboratory" conditions of the election were spoiled. Specifically, the Company asserts that Goodgal showed unwarranted hostility towards Company observer Brent Borgerson and those employees who attempted to contact him during the election, that Goodgal grossly mishandled an Italian-speaking employee's attempt to vote, that both Board agents impermissibly aided Union observer Julia Arroyo in challenging allegedly ineligible voters, and that they unfairly conducted the ballot counting procedure at the conclusion of the election. The Company filed timely objections to the Board agents' conduct. A hearing was held in June 1980 before a Hearing Officer from a different regional office. ²

Although a party moving to set aside a certified election because of Board agent misconduct must sustain a heavy burden of proof, NLRB v. Fenway Cambridge Motor Hotel, 601 F.2d 33, 36-37 (1st Cir.1979), the principles governing Board agent conduct demand strict impartiality. As the Board itself has stated:

"The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures. The commission of an act by a Board agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside that election."

Athbro Precision Engineering Corp., 166 N.L.R.B. 966 (1967), vacated sub nom. I.U.E. v. NLRB, 67 L.R.R.M. 2361 (D.D.C.1968), acquiesced in, 171 N.L.R.B. 21 (1968), enforced, NLRB v. Athbro Precision Engineering Corp., 423 F.2d 573 (1st Cir.1970). Board agent conduct which casts doubt upon the fairness of the election results or which has the appearance of doing so constitutes ground for a new election. We therefore must determine here whether substantial evidence supports the Board's refusal to set aside the election based on the allegedly improper conduct of its agents.

The propriety of the Board's conclusion that the alleged misconduct did not warrant a new election turns to a great extent upon the credibility determinations made by the Hearing Examiner. These credibility determinations should "not be overturned by a reviewing court absent extraordinary circumstances." NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982) (discussing credibility determinations, including assessments of demeanor, made by an ALJ). Such circumstances exist only where bias is shown or where there is a "complete disregard for sworn testimony." Medline Industries, Inc. v. NLRB, 593 F.2d 788, 795 (7th Cir.1979) (citation omitted). The Company here has not demonstrated that the Hearing Officer harbored anti-employer bias. Rather, the Hearing Officer arrived at her conclusion to exonerate Board agents of misconduct primarily because of her mistrust of the key Company witness, Borgerson. For example, she commented on Borgerson's credibility as follows:

"He impressed me as a witness predisposed to exaggeration with a dramatic flair, in the favor of the Employer, toward which Borgerson had an obvious bias. Elements including his demeanor, recent supervisory promotion and evident feeling of superiority to his co-workers due to his bilingual abilities and relative advanced education, support my conclusion that much of Borgerson's testimony cannot be taken at face value."

The Hearing Officer's decision to believe the Board agents' version of the events as opposed to that of Borgerson must be accepted as reasonable. She attempted to resolve the seemingly irreconcilable versions of the events as best she could. See Kopack v. NLRB, 668 F.2d 946, 954 (7th Cir.1982) (credibility determinations based on witness' demeanor accorded the most deference). Although we might have reached a different conclusion upon hearing the contradictory versions, the fact remains that we were not there and the Hearing Officer was. We are satisfied that the Hearing Officer did not manifest bias. Thus, in reviewing the alleged instances of misconduct, we must accept the Hearing Examiner's factual findings based upon her assessments of demeanor, unless there is a "complete disregard for sworn testimony." Medline, supra, 593 F.2d at 795.

The first instance of alleged misconduct took place during the pre-election conference. Goodgal and Wilson convened a meeting of election observers from both the Union and the Company to advise the observers of the voting procedures. Goodgal addressed the group. Wilson then translated her remarks into Spanish. Goodgal allegedly told Borgerson to "shut up" when he attempted to help Wilson translate her remarks into Spanish; yet she allowed Union representatives to help translate her remarks to the group. The Hearing Officer, however, credited testimony which explained the disparate treatment, namely, the Union representatives had asked for permission to help translate Goodgal's remarks after it became apparent that the group did not understand Wilson's translation, whereas, in contrast, Borgerson interrupted Wilson's translation to add his own clarification of Goodgal's instructions. The Board reasonably could have concluded that Goodgal's demeanor at the pre-election conference did not manifest undue partiality toward the Union.

The Company also asserts that Goodgal heaped abuse upon Borgerson during the election itself. Goodgal prohibited even brief discussions between Borgerson and employee voters in the polling area. At times her remonstrances with Borgerson and employees attempting to converse with him probably were impolite. Yet prohibiting all discourse between the...