N.L.R.B. v. Valley Bakery, Inc.
| Decision Date | 24 February 1993 |
| Docket Number | No. 91-70352,91-70352 |
| Parties | 142 L.R.R.M. (BNA) 2615, 143 L.R.R.M. (BNA) 3078, 124 Lab.Cas. P 10,566, 125 Lab.Cas. P 10,792 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY BAKERY, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
National Labor Relations Board (NLRB) petitioned for enforcement of order that employer bargain with union. The Court of Appeals, Choy, Circuit Judge, held that evidentiary hearing should have been conducted on employer's claims of election misconduct by union, based on circumstantial evidence of implied threats that employees would be fired if they had signed union authorization cards and union lost election.
Petition denied; case remanded.
John D. Burgoyne and Collis Suzanne Stocking, N.L.R.B., Washington, DC, for petitioner.
Harry Finkle, Finkle, Davenport & Bartsamian, Fresno, CA, for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before: WALLACE, Chief Judge, and CHOY and POOLE, Circuit Judges.
The National Labor Relations Board ("NLRB" or "Board") petitions for enforcement of its order that Valley Bakery, Inc. ("Valley" or "Company") bargain with the Bakery, Confectionary & Tobacco Workers International Union, Local No. 85, AFL-CIO ("Union"). Because the Regional Director should have conducted an evidentiary hearing on the Company's claims of election misconduct by the Union, we decline to enforce the Board's order and remand for an evidentiary hearing.
On April 19, 1990 the Union filed a petition seeking a representation election at the Company. On June 6, 1990 the NLRB held an election at which employees cast twelve votes for and nine votes against Union representation.
The Company timely objected to the election alleging, inter alia, that the Union or its agents coerced employees to vote in its favor by telling employees that they would be fired if the Union lost the election. In support of these objections Valley submitted the declaration of Nancy Gallagher, its Personnel Director. According to Gallagher, after the election she asked a Valley employee, who characterized herself as a strong Union supporter, why the Company had lost the election. The employee agreed to discuss the election but only on the condition that she not put anything in writing, identify any individuals, or disclose specific activities which she had promised the Union she would keep confidential. The employee told Gallagher that employees were afraid to vote against the Union because they were told that those employees who previously had signed authorization cards would be discharged by Valley if the Union did not win the election. When asked who made the employees believe they would be fired, the employee declined to answer on the ground that to do so would reveal confidences. On the basis of this declaration, the Company requested an evidentiary hearing in order to compel sworn testimony of adverse witnesses.
The NLRB's Acting Regional Director conducted an investigation and issued his Report and Recommendations on Objections on June 28, 1990. He overruled all the Company's objections, including objection three which stated: "The Union coerced employees to cause them to vote for the Union." The Regional Director found that the Gallagher declaration established that threats were made, but that it did not establish that the Union was responsible for making them. Moreover, the Director found that, even assuming that the Union had made the threats, the employees reasonably could be expected to evaluate such remarks as being illogical and unenforceable and, therefore, noncoercive. The Director reached this conclusion because no evidence suggested that Valley favored the Union or was disposed to discharge employees if the Union lost the election. Moreover, the Company did not know who supported the Union before the election because employees signed the authorization cards in confidence.
On July 11, 1990 the Company filed timely exceptions to the Regional Director's Report. In particular, Valley excepted to the Regional Director's failure to find that Valley had presented substantial and material facts which, if true, established a nexus between the threats made and the Union or its agents. It also challenged the Director's conclusions that Company employees necessarily would have rejected the threats and that these threats did not have an adverse effect on the election results. On September 18, 1990 the Board issued its decision adopting the Regional Director's findings and recommendations and certifying the Union as the employees' bargaining agent.
Thereafter, the Company refused to recognize or bargain collectively with the Union. On December 19, 1990 the Union filed a complaint alleging that, by refusing to bargain with the Union or to provide it with requested information that was necessary and relevant to its representation, Valley engaged in unfair labor practices in violation of section 8(a)(5) and (1) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158(a)(5) and (1).
In its answer the Company admitted that it refused to bargain with the Union or to recognize it as the exclusive representative of Valley employees. The Company denied, however, both that the Board's certification of the Union was lawful and effective and that Valley's refusal to bargain with the Union was unlawful. The Company's affirmative defense was that the Board's certification of the Union was unlawful and unenforceable due to the Union's alleged threats and coercive conduct.
NLRB General Counsel moved for summary judgment and the case was transferred to the Board. In its opposition to the motion, the Company reiterated the contentions contained in its answer. On March 15, 1991 the Board issued its Decision and Order ruling that Valley had engaged in unfair labor practices. The Board ordered the Company to bargain with the Union and to furnish it the information it requested. The Board petitioned this court to enforce its order and Valley seeks review of the certification proceeding underlying the Board's order. 1
The law governing the issue raised in this case is straightforward. To obtain an evidentiary hearing on an election objection, the objecting party must make a prima facie showing that substantial and material issues of fact exist that would warrant setting aside the election. 29 C.F.R. § 102.69(d); Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1344 (9th Cir.1987); Alson Mfg. Aerospace Div. of Alson Indus. v. NLRB, 523 F.2d 470, 472 (9th Cir.1975).
To establish a prima facie case, the objecting party must plead facts which, if true, would support a finding that (1) threats were made, and (2) an "employee was actually coerced or intimidated" by the threats. NLRB v. Belcor, Inc., 652 F.2d 856, 861 (9th Cir.1981); see also May Dep't Stores v. NLRB, 707 F.2d 430, 432 (9th Cir.1983). 2 When the Board refuses to hold an evidentiary hearing, the court "must construe the 'well pleaded factual assertion of the objection most favorably to the excepting party'...." Bell Foundry Co., 827 F.2d at 1344 (quoting Belcor, Inc., 652 F.2d at 859).
The Board's decision not to grant an evidentiary hearing on election objections is reviewed for an abuse of discretion. Bell Foundry Co., 827 F.2d at 1344. If the Board abused its discretion in failing to hold a hearing, the employer's refusal to bargain with the Union is not an unfair labor practice. See NLRB v. West Coast Liquidators, Inc., 725 F.2d 532, 534 (9th Cir.1984); Advanced Systems, 681 F.2d at 572.
Valley argues that the Regional Director erred in concluding that Gallagher's declaration concerning statements made by a Valley employee did not establish a substantial and material factual issue sufficient to warrant an evidentiary hearing. Valley contends that the employee's refusal to identify those who made the allegedly threatening remarks, when coupled with her invocation of the pledge of confidentiality to the Union, is prima facie evidence that the Union was responsible for the threats.
Because this court construes all factual assertions most favorably to the excepting party, Bell Foundry Co., 827 F.2d at 1344, we find that the Company has presented enough evidence to obtain an evidentiary hearing. It is true that to establish a prima facie case, "[t]he proffer [of evidence] may not be conclusory or vague; it must point to specific events and specific people." Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir.1981). Notably, however, "an employer seeking evidence [to prove election misconduct] has access to very limited discovery; it must proceed in an exceedingly careful manner to avoid being accused of coercive interrogation of employees." NLRB v. J-Wood/A Tappan Div., 720 F.2d 309, 316 (3d Cir.1983) (citation omitted). It is, therefore, "unreasonable to expect an employer to document its objections with the kind of evidence that realistically could be uncovered only by subpoena and an adversarial hearing." Id. at 316. 3
The Gallagher declaration is circumstantial evidence that implied threats were made that employees would lose their jobs if they had signed authorization cards and the Union lost the election. The Regional Director found that no nexus existed between the Union and the threats, but the only reasonable inference to draw from the employee's invocation of her pledge of confidentiality is that the Union or its agents made the statements. Cf. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989) (); Linn Gear Co. v. NLRB, 608 F.2d 791, 793 (9th Cir.1979) ().
The remaining question is whether these statements...
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