AEROVOX CORPORATION OF MYRTLE BEACH, SC v. NLRB, 12565.

• Decision Date: 18 April 1969
• Docket Number: No. 12565.,12565.
• Citation: 409 F.2d 1004
• Parties: AEROVOX CORPORATION OF MYRTLE BEACH, SOUTH CAROLINA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

409 F.2d 1004 (1969)

AEROVOX CORPORATION OF MYRTLE BEACH, SOUTH CAROLINA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12565.

United States Court of Appeals Fourth Circuit.

Argued January 10, 1969.

Decided April 18, 1969.

Wm. H. Smith, Jr. (Smith & Smith, on brief), for petitioner.

Kenneth Pearlman, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N. L. R. B., on brief), for respondent.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

Aerovox Corporation of Myrtle Beach, South Carolina (the "company"), petitions to review and set aside an order of the Board which, predicated upon findings that the company had violated §§ 8 (a) (5) and 8(a) (1) of the Act, directed the company to cease and desist from refusing to bargain collectively with Local Union No. 382, International Brotherhood of Electrical Workers, AFL -CIO (the "union") and from interfering with the efforts of the union to represent the employees as their exclusive bargaining representative. The Board's cross-petition seeks enforcement of the order, and we grant it.

On July 27, 1967, the production employees in the company's plant voted in a secret ballot election to determine if the union should act as their collective bargaining representative. The union prevailed in the election by a margin of 335 to 307, with 18 challenged ballots not counted since they could not affect the result. The company filed timely objections to the election. The company's principal complaint was that a handbill distributed by the union the day before the election contained substantial misrepresentations of fact, which destroyed the conditions necessary to a free and fair election. The handbill in its entirety is set forth in the margin.¹

After an administrative investigation, during the course of which the various parties were afforded an opportunity to present such evidence as they desired to submit, the regional director found that the union's representation that the Burbank plant was operating full-time was incorrect. In fact, that particular plant ceased operations on July 1, 1967, but was reopened shortly thereafter by a subsidiary of the company, with a work force not represented by the union. When reopened, this plant engaged in the manufacture of microcircuits, an operation entirely different from that previously conducted there. The regional director declined to set aside the election, because he found (a) the facts concerning the contract covering employees at the Burbank plant and its operational status were not facts within the peculiar knowledge of the union, but were fully known to the company at all material times, (b) the issue concerning the operational status of the Burbank plant had been raised nine weeks prior to the election, and the company had "extensively" availed itself of the opportunity to state its position with regard to this issue, so that the handbill did not raise the issue for the first time but was, rather, the last round in a lengthy exchange of propaganda by both parties, and (c) in any event, even though the handbill was distributed to the employees the day before the election, the company had an adequate opportunity to rebut the statements contained therein, if it had so desired.

The Board rejected the company's request for a review of the regional director's decision on the theory that no substantial issues had been raised requiring such review, but the Board explicitly disavowed the regional director's reliance upon the fact that the company could have rebutted the representations in the handbill. The Board stated that, "it is sufficient that employer has previously informed employees that said plant the Burbank plant had ceased operations."

The union was certified as the employees' exclusive bargaining representative, and when the company refused to bargain a complaint charging violations of §§ 8(a) (5) and 8(a) (1) was issued. The trial examiner granted general counsel's motion for summary judgment, justifying his refusal to hold an evidentiary hearing by referring to established Board policy not to permit relitigation of issues which were or could have been litigated in a prior proceeding absent a showing of newly discovered or previously unavailable evidence. His action was sustained by the Board.

We must consider (1) whether the nature of the misrepresentations in the handbill and the circumstances of its distribution to the employees were sufficient to vitiate the election, and (2) whether the Board proceeded properly in sustaining the grant of summary judgment, thereby denying the company's request for an evidentiary hearing.

I

Preliminarily, it is appropriate to reiterate what has been often stated by this court, as well as many others, namely, that the "control of the election proceeding and the determination of the steps necessary to conduct that election fairly were matters that Congress entrusted to the Board alone." Schneider Mills, Inc. v. NLRB, 390 F.2d 375, 378 (4 Cir. 1968), quoting NLRB v. Waterman S. S. Corp., 309 U.S. 206, 226, 60 S. Ct. 493, 84 L.Ed. 704 (1940) It is the Board which is afforded a wide degree of discretion in establishing and maintaining those conditions which in its view will provide for the employees the maximum opportunity freely and fairly to determine which organization, if any, will be designated to represent their collective economic interests. NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); Olson Rug Co. v. NLRB, 260 F.2d 255, 256-257 (7 Cir. 1958); NLRB v. Shirlington Supermarket, Inc., 224 F.2d 649, 651 (4 Cir.), cert. den., 350 U.S. 914, 76 S.Ct. 198, 100 L. Ed. 801 (1955). Thus, only those false statements which are demonstrated to have impaired this freedom of choice will cause an election to be set aside. Anchor Mfg. Co. v. NLRB, 300 F.2d 301, 303 (5 Cir. 1962). In short, the alleged misrepresentations "must be shown to have prejudiced the fairness of the election." NLRB v. Bata Shoe Co., 377 F.2d 821, 829 (4 Cir.), cert. den., 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967).

We believe that the Board correctly concluded that the circumstances under which the challenged handbill was distributed did not render impossible a free and uninhibited...