Certainteed Corp. v. N.L.R.B.

• Decision Date: 24 August 1983
• Docket Number: No. 81-7251,81-7251
• Citation: 714 F.2d 1042
• Parties: 114 L.R.R.M. (BNA) 2541, 98 Lab.Cas. P 10,462 CERTAINTEED CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1042

714 F.2d 1042

114 L.R.R.M. (BNA) 2541, 98 Lab.Cas. P 10,462

CERTAINTEED CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 81-7251.

United States Court of Appeals, Eleventh Circuit.

Aug. 24, 1983.

Constangy, Brooks & Smith, Alan L. Rolnick, Lovic A. Brooks, III, Atlanta, Ga., for petitioner, cross-respondent.

Elliott Moore, Deputy Asst. General Counsel, N.L.R.B., Helen L. Morgan, Washington, D.C., for respondent, cross-petitioner.

Tomar, Parks, Seliger, Simonoff & Adourian, Robert F. O'Brien, Haddonfield, N.J., for intervener Glass Bottle Blowers Assoc. of the U.S. and Canada, AFL-CIO.

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

Before TJOFLAT and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Certainteed Corporation (the Company) petitions the court to review an order of the National Labor Relations Board (the Board) finding that it committed unfair labor practices in refusing to bargain with a certified union in violation of sections 8(a)(1) and 8(a)(5) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 158(a)(1) and (5) (1976), and the Board cross-petitions for enforcement. The Glass Bottle Blowers Association of the United States and Canada (the Union) has intervened in the proceeding. As a defense to the refusal to bargain charges, the company challenges the validity of the underlying representation proceeding and the refusal of the Board to grant a hearing on three of the four objections to that election proceeding which it presents to us for review. ¹

The Company urges that last-minute union misrepresentations of fact impaired employee free choice (objection 1); that threats created an atmosphere of coercion and fear that prevented employee free choice (objection 2); that several improper acts by the union and its supporters combined with rumors in the plant to create an impression that the union would pay employees to vote for it (objection 3); and that electioneering at or near the polling place destroyed the "laboratory conditions" the Board requires in its election proceedings (objection 4).

We sustain the Board's findings that objections 2, 3 and 4 lack merit, but remand objection 1 to the Board for the limited purpose of determining the retroactivity vel non of an intervening change in the standard governing misrepresentation objections. We consider these objections in turn. ²

Pursuant to a stipulation, an election was held at the Company's Athens, Georgia, plant on February 15 and 16, 1979. The union won by a margin of 180 votes to 144. The Company timely filed five objections to the conduct of the election. The Regional Director (RD) recommended, after an ex parte investigation, that these objections be dismissed in their entirety. The Company excepted to this recommendation, and urged the Board to hold a hearing on its objections. The Board, in an unpublished decision, adopted the RD's recommendation that objections 1, 2, 4 and 5 be overruled without a hearing, but directed that a hearing be held on objection 3--that the union granted benefits to voters, or created the appearance that benefits would be granted to those supporting it--and on a sixth objection which developed in the course of the RD's ex parte investigation. After a hearing, the Hearing Officer recommended that these objections be overruled. The Board subsequently adopted these recommendations and certified the union. The Company refused to bargain in order to obtain judicial review of the election certification, and maintains that objections 1-4 require that the election be set aside. It also argues that a hearing is required to resolve factual disputes pertaining to objections 1, 2 and 4. ³

I. Misrepresentations

In objection 1, the Company asserts that the Union mailed three letters to the employees during the week before the election that materially understated the wage increases given by the Company to its employees during 1978, and overstated the increases that the union won for Certainteed employees in New Jersey and Owens-Corning employees in Texas. At the time the Board reviewed this objection, it applied the standard first articulated in Hollywood Ceramics Co., 140 NLRB 221, 224 (1962) (footnote omitted), and subsequently reaffirmed in General Knit of California, Inc., 239 NLRB 619, 620 (1978) (footnote omitted):

[A]n election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.

During the pendency of this appeal, the Board decided to abandon the Hollywood Ceramics-General Knit test for misrepresentation objections, and return to the approach taken in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977). In accordance with Shopping Kart --a case overruled 20 months later by General Knit --the Board held in Midland National Life Insurance Co., 263 NLRB No. 24, 110 LRRM 1489, 1494 (1982), that it would no longer probe into the truth or falsity of the parties' campaign statements, and that it would no longer set aside elections on the basis of misleading campaign statements. Henceforth, the Board will intervene in only two cases: (1) "where a party has used forged documents which render the voters unable to recognize propaganda for what it is," id. (footnote omitted); and (2) "when an official Board document has been altered in such a way as to indicate an endorsement by the Board of a party to the election." Id. at ---- n. 25, 110 LRRM at 1494 n. 25 (citation omitted). Thus, the Board will no longer overturn elections based on the substance of the parties' representations, but only because of the deceptive manner in which the representations were made. Id. ⁴

If the union representations at issue did not breach the Hollywood Ceramics-General Knit standard, it would not be necessary to consider the issues raised by the Board's decision to utilize the less restrictive standards established in Shopping Kart. ⁵ However, careful review of the record in this case indicates that the RD, and the Board, erred in overruling objection 1 without holding a hearing under the Hollywood Ceramics-General Knit standard. It is clear, though, that since the misrepresentations involve neither forged documents nor altered Board documents, the Board would not set aside this election based on these misrepresentations if it applied the Shopping Kart-Midland rule. ⁶ Therefore, we must determine the applicability of the Midland decision to this appeal. We first analyze the objection under the more stringent Hollywood Ceramics standard, and then reach the issues presented by the Board's decision in Midland.

Initially, the parties wage a fierce battle over the appropriate standard for our review of the Board's disposition of the election objections. It is true that

[o]ur standard of review is based upon the recognition that Congress has entrusted broad discretion to the Board to conduct and supervise employee elections. The specialized functions of the Board, such as classification of employees and the identification of an unacceptable degree of interference with free choice in union elections, require a quality and degree of expertise uniquely within the domain of the Board.

NLRB v. Klingler Electric Corp., 656 F.2d 76, 85 (5th Cir. Unit A 1981). ⁷ It is also true that "no area is more within the expertise of the Board than the proper limits of campaign propaganda and the impact of employer and union statements upon the employees' exercise of free choice." NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969).

However, our standard of review hinges fundamentally on the underlying nature of the Board's determination with respect to each election objection and the manner in which it has made that determination. The Board disposed of the company's misrepresentation objection without holding a hearing thereon, thus ruling that it did not raise "substantial and material factual issues." 29 C.F.R. § 102.69(d) (1982) (requiring a hearing whenever the RD concludes that an objection raises such issues). We have held that due process requires the Board to grant a losing party a post-election hearing when it supplies prima facie evidence raising substantial and material issues that would warrant setting the election aside. NLRB v. Claxton Manufacturing Co., Inc., 613 F.2d 1364, 1365 (5th Cir.1980), modified 618 F.2d 396.

The losing party to an NLRB election must sustain a heavy burden of proof in order to gain the right to an evidentiary hearing on its objections. It must come forward with " 'specific evidence of specific events from or about specific people ...'; conclusory allegations are not sufficient." Claxton Manufacturing Co., 613 F.2d at 1366 (quoting NLRB v. Douglas County Electric Membership Corp., 358 F.2d 125, 130 (5th Cir.1966)) (citations omitted). We have also required more than a mere showing of specific, objectionable activity: that activity must be shown to have had a material effect on employee free choice and the outcome of the election. See id.; Golden Age, 415 F.2d at 30.

An objecting party may not rely upon the Board to develop the evidence to make this showing, see United States Rubber Company v. NLRB, 373 F.2d 602, 606 (5th Cir.1967); however, once this showing has been made, the right to a hearing is established. It may not be denied on the basis of additional information developed by the RD in his ex parte investigation. Claxton Manufacturing Co., 613 F.2d at 1366. ⁸ Notwithstanding the broad discretion the Board enjoys in conducting and supervising employee elections, it lacks discretion to deny a hearing to...