Collins & Aikman Corporation v. NLRB

• Citation: 383 F.2d 722
• Decision Date: 15 September 1967
• Docket Number: No. 10973.,10973.
• Parties: COLLINS & AIKMAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

383 F.2d 722 (1967)

COLLINS & AIKMAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 10973.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1967.

Decided September 15, 1967.

COPYRIGHT MATERIAL OMITTED

Frank A. Constangy, Atlanta, Ga. (Constangy & Powell, Atlanta, Ga., on brief), for petitioner.

Vivian Asplund, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Atty., N. L. R. B., on brief), for respondent.

Before BOREMAN and WINTER, Circuit Judges, and SIMONS, District Judge.

SIMONS, District Judge:

Pursuant to Section 10(f) of the National Labor Relations Act as amended, 29 U.S.C.A., Section 160(f), Collins and Aikman Corporation (hereinafter referred to as the Company) petitions this court to review and set aside an order of the National Labor Relations Board (hereafter the Board), which held that the Company had violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Textile Workers Union of America, AFL-CIO, (hereafter the Union), as the exclusive representative for its employees in its branch operation in Culver City, California,¹ and ordered the Company to cease and desist from such practice. The Board cross-petitioned for enforcement of its order, 29 U.S.C.A., Section 160(e).

The sole issue raised by the petition for review is whether the Board's certification of the representation election is valid. If so, the Company's refusal to bargain with the Union violated Section 8(a) (5) and (1) of the Act, and requires enforcement of the Board's order.

This controversy arose as a result of an election conducted on June 4, 1965 by the Board pursuant to Section 9 of the National Labor Relations Act as amended for the purpose of having the Company's production and maintenance employees at its Culver City, California plant determine whether they desired to have the Union as their exclusive bargaining agent. In the election 13 employees voted for and 12 against Union representation. Timely objections to the election were filed by the Company upon its discovery that the Union made certain alleged pre-election misrepresentations, and improper financial inducements to some of its employees which it contended actually affected, or tended to affect, the results of the election. The Company's objections were as follows:

(1) That the Union promised to waive initiation fees to employees signing Union cards prior to the election, but that such waiver was conditioned upon the Union\'s "winning the election";

(2) That the Union induced an employee, Wener, who had theretofore refused to do so, to act as its representative and observer at the election by promising to pay him for doing so a sum far in excess of his regular earnings for the period of time involved;

(3) That the Union substantially misrepresented the wage provisions of the contract it had negotiated with other carpet manufacturers in the area in order to obtain support of eligible voters; and

(4) That the Union promised immediate and substantial wage adjustments to employees in the event it won the election.

The Regional Director conducted an investigation of the Company's objections and thereafter submitted to the Board his report recommending that all of the objections be overruled and that it certify the Union as a result of the election. The Company then filed timely exceptions with supporting affidavits to the Regional Director's report. The Board ordered a hearing to explore and resolve the factual and legal issues raised by the Company's objections and exceptions.

All parties were represented at the hearing, produced witnesses and participated therein, and such testimony was taken as was tendered. Thereafter, the Hearing Officer recommended that the Company's objections be rejected and that the election results be certified. The Board on review, although noting that the Hearing Officer had erred with respect to his findings that the Union's misrepresentations referred to in objection number three had not occurred, nevertheless accepted the Hearing Officer's recommendations and certified the Union.² With such conclusion we cannot agree. We hold for the reasons hereinafter stated that the Board's order overruling the Company's objections two and three and certifying the election as valid is not supported by substantial evidence on the record as a whole. Enforcement of the order under review should therefore be denied. 29 U.S.C.A. § 160(f).

MISREPRESENTATIONS AS TO WAGE RATES OF COMPANY COMPARED TO THOSE OF ITS UNIONIZED COMPETITORS — (OBJECTION THREE)

Briefly stated the background facts relative to this issue are as follows: Subsequent to the filing of its election petition and during the campaign, the Union called a meeting at the Moose Hall a short distance from the plant two or three weeks prior to the election. Upon his arrival at the hall for such meeting, employee-voter Louis Winkley learned from Union representative Chester Wright that the formal meeting had been called off because the hall was being used by some other group. Winkley then engaged Wright in conversation in the parking lot, and questioned him concerning the policies of the Union. The conversation turned to wages paid by the Company as compared to those paid by other carpet manufacturers in the area. Winkley's testimony at the Board hearing³ concerning their wage rate conversation is as follows:

"I asked him, okay, if the Union got in — he asked me was I a shipper, and at the time I was a shipper, and I had switched jobs because I couldn\'t take all them pressures; so, I got to be a creeler, and he told me if he thought I was a shipper, he thought I should be making at least $2.25. And I told him I was making $1.85, and I told him I was a creeler now and only making $1.65. And he said a creeler should be making at least $1.90 and that is when he came up with that list."

"That list" which was shown by Wright to Winkley as being the wage rates at the unionized Holly-Tex plant supported his statement that at the Holly-Tex plant the Union had negotiated considerably higher wage rates for a "shipper" and a "creeler". Winkley had been a "shipper" for the Company before transferring to that of a "creeler" a short time before. Winkley testified that Wright told him that the "list" contained the wage rates at the Holly-Tex plant where the Union had negotiated a rate of $2.25 per hour for a "shipper" and $1.90 per hour for a "creeler". The Company had been paying Winkley $1.85 per hour while working for it as a "shipper", and he was currently making $1.65 as a "creeler".⁴ The fact that these misrepresentations had been made by Wright to Winkley did not come to light until after the election, thus the Company had no opportunity to combat or correct them. Prior to the hearing on its objections the Company obtained a copy of the actual rates contained in the Holly-Tex Union contract, and it was stipulated at the hearing that the rates shown on such list were the current rates for the period of time in question. In this connection it is noted that Winkley testified⁵ that the rates contained on the stipulated list were not the rates nor the paper shown to him by Wright. In fact, a comparison of the Holly-Tex rates and the Company's rates in effect at that time discloses that a "creeler" at Holly-Tex, under its Union contract, was receiving $1.60 per hour while the Company was paying $1.65 to Winkley. Wright had misrepresented to Winkley that the Holly-Tex pay rate for such position was $1.90 per hour.

It is significant that Wright, who was called as the last witness at the hearing by the Board after Winkley had testified, was not questioned concerning Winkley's testimony and in no way disputed or contradicted such testimony concerning the misrepresentations he had made to Winkley. Neither was the list (apparently fictitious) which Wright had exhibited to Winkley on the night in question produced in court.

Generally the task of correcting inaccurate and untrue statements during a campaign of a representation election is left to the parties and ultimately to the good sense of the voters. An election will not be set aside because of campaign misrepresentations unless it is likely that such utterances had a significant impact on the election. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 60, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Olson Rug Co. v. N.L.R.B., 260 F.2d 255 (7th Cir. 1958); Anchor Mfg. Co. v. N.L.R.B., 300 F.2d 301, 303 (5th Cir. 1962). Determination of the validity of such elections has been reposed in the expertise of the Board by Congressional mandate, subject only to review by the Courts of Appeal, and on review "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive." 29 U.S.C. Section 160(f). N.L.R.B. v. National Plastics Products Co., 175 F.2d 755 (4th Cir. 1949). The burden of proof that an election was unfair and that it did not represent the free and untrammeled will of the electorate is upon the objecting party, in this case the Company. N.L. R.B. v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961).

When material misrepresentations are made by a Union or its representatives in the course of an election which offend the electoral process, tend to affect or are likely to have a significant impact upon such election, then there can be no fair, uninfluenced or untrammeled election and the same should not be certified as valid. N.L.R.B. v. Schapiro and Whitehouse, Inc., 356 F.2d 675 (4th Cir. 1966). Our comments in N.L.R.B. v. Bonnie Enterprises, Inc., 341 F.2d 712, at page 714 (4th Cir. 1965), concerning false representations made in the course of an election campaign are equally applicable to the material misrepresentations made in the...