Bauer Welding and Metal Fabricators, Inc. v. N.L.R.B.

• Decision Date: 28 April 1982
• Docket Number: No. 81-1628,81-1628
• Citation: 676 F.2d 314
• Parties: 110 L.R.R.M. (BNA) 2270, 94 Lab.Cas. P 13,492 BAUER WELDING AND METAL FABRICATORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 314

676 F.2d 314

110 L.R.R.M. (BNA) 2270, 94 Lab.Cas. P 13,492

BAUER WELDING AND METAL FABRICATORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1628.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1982.

Decided April 28, 1982.

Howard E. Perlstein, James D. Donathen, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., for respondent.

Felhaber, Larson, Fenlon & Vogt, P.A., James M. Dawson, St. Paul, Minn., for petitioner.

Before HENLEY and McMILLIAN, Circuit Judges, and NANGLE, ^* District Judge.

HENLEY, Circuit Judge.

This matter comes before us on a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board. The Board found that petitioner (Bauer) had engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (the Act), by refusing to bargain collectively with District Lodge No. 77, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), and, among other things, ordered Bauer to cease and desist from refusing to bargain with the Union. For reasons to be stated, we deny enforcement of the Board's order, and remand this case to the Board for an evidentiary hearing.

On January 16, 1980 the Union filed a petition for an election for all production and maintenance employees of Bauer. An election was subsequently conducted on March 20, 1980 in accordance with the terms of a Stipulation for Certification Upon Consent Election executed by the parties. The Union received a majority of the votes cast.

During the two month interval between the Union's filing of the petition and the time of the election, both parties engaged in a vigorous campaign. Bauer asserts that at various times during the campaign Union agents and supporters engaged in acts of intimidation of bargaining unit employees and others in a manner calculated to influence the employees' votes in the election. In addition, Bauer alleges that campaign materials disseminated by the Union at various times during the campaign contained material misstatements of the law on significant campaign issues, and, further, fostered the impression that the federal government and the Board supported the Union's activities in attempting to organize the employees. Finally, Bauer asserts that the election was affected by other improprieties such as the failure of the Board agent conducting the election to allow Bauer's election observers to check the seal on the ballot box, and the wearing of campaign buttons by the Union's observers and runners.

Following the certification election, Bauer filed timely objections and supplied documentation concerning incidents occurring during the course of the campaign. Bauer's request for an evidentiary hearing was refused. Instead, a Regional Director of the Board conducted an ex parte administrative investigation of the objections, and recommended in a report dated May 27, 1980 that the objections be overruled. This recommendation was ultimately adopted by the Board. The Union was certified, and Bauer refused to furnish information to the Union or to bargain.

On December 26, 1980, pursuant to a charge filed by the Union, the Board's General Counsel issued a complaint alleging that Bauer had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and by refusing to furnish the Union with the information requested. On January 23, 1981 the General Counsel filed a motion for summary judgment. The Board found that all contentions raised by Bauer in the unfair labor practice proceeding regarding the Union's certification had been presented in the underlying representation proceeding and granted the motion for summary judgment. These petitions followed.

Section 10(a) of the Act confers upon this court the power "to make and enter a decree enforcing, modifying, and enforcing as modified, or setting aside in whole or in part the order of the Board." In this proceeding, the employer may contest the certification of the union and, in some circumstances, this court is empowered to order that additional evidence be taken. See NLRB v. Winburn Tile Mfg. Co., 663 F.2d 44 (8th Cir. 1981); NLRB v. Skelly Oil Co., 473 F.2d 1079 (8th Cir. 1973).

Although the underlying factual disputes differ, the procedural circumstances surrounding these petitions are indistinguishable from those present in Winburn Tile. In that case, we held that a party can show that summary judgment was improperly granted and that it was entitled to a hearing if

"the requesting party (raises) substantial or material issues which, if proved, would warrant setting aside the election." Beaird-Poulan Division, Emerson Elec. Co. v. NLRB, 571 F.2d 432, 434 (8th Cir. 1978). The test for determining whether material factual issues exist has been set forth in NLRB v. Griffith Oldsmobile, Inc., 455 F.2d 867 (8th Cir. 1972).

It is incumbent upon the party seeking a hearing to clearly demonstrate that factual issues exist which can only be resolved by an evidentiary hearing.... Mere disagreement with the Regional Director's reasoning and conclusions do(es) not raise 'substantial and material factual issues.' ...

455 F.2d at 868-69, quoting NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).

663 F.2d at 46.

In addition, where the employer has specifically controverted the subsidiary factual determinations made by the Regional Director, and has offered proof which, if true, would raise material factual issues, this court has held that "the company must be afforded the opportunity to produce evidence" at a hearing wherein the testimony of witnesses may be subject to the "cleansing rigors of cross-examination." NLRB v. Winburn Tile Mfg. Co., 663 F.2d at 47. See Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 571 F.2d 432, 434 (8th Cir. 1978); NLRB v. Commercial Letter, Inc., 455 F.2d 109, 113-14 (8th Cir. 1972).

The first set of issues raised concerns several alleged incidents of coercive behavior on the part of Union representatives or supporters. In one of these incidents, several letters with identical texts were sent by the local Union representative to supervisory personnel on or about February 11, 1980. These letters were on stationery bearing the letterhead of the Union, and stated, in effect, that persons could be fined up to $5,000.00 or punished by imprisonment of up to one year for committing "acts of improbity" in violation of the Act. The letters further advised these supervisors that the Union would pursue enforcement of the Act should any unfair labor practices be committed. ¹

The Regional Director, in his Report and Recommendation stated:

It appears that the (Union) mistakenly referred to the criminal sanctions in Section 12 of the Act which are not applicable to unfair labor practices but to willful interference with an agent of the Board in the performance of his duties. Board remedies are remedial in nature, not punitive, and therefore Petitioner's statement is a misstatement of the law. Nevertheless, I do not believe the letter could have reasonably had an impact on the election. There is no evidence that knowledge that the supervisors had received the letters or of the contents of the letters was widespread among the employees. Furthermore, when the entire content of the letters is read in context it is questionable whether it can reasonably be considered threatening or intimidating. In any event, if it is threatening or intimidating, it is not so threatening or intimidating as to rise to the level that it can reasonably be said to have created such an atmosphere as to have interfered with the employees' freedom of choice in the election.

(Footnote omitted.)

We observe, however, that Mr. Schauls, one of the supervisors, stated in an affidavit dated April 22, 1980 that before he received the letter he was informed by an employee that the letter would be forthcoming. According to the affidavit, when Schauls asked about the contents of the letter the employee declined to divulge the contents of the letter, stating, in effect, that he did not want to be misquoted. The affidavit also recites that after Schauls had received the letter, two or three other employees asked him whether he had received it.

These recitations give rise, at a minimum, to an inference that knowledge of the contents of the letter was widespread among the plant employees. Furthermore, although it is possible that such an inference could be rebutted, we nevertheless think that this is "precisely the (type) of material (issue) warranting a hearing." NLRB v. Winburn Tile Mfg. Co., 663 F.2d at 46.

Similarly, the Regional Director's broad conclusion that the letter could not reasonably be considered so coercive as to create an atmosphere interfering with the employees' freedom of choice is not supported by any subsidiary findings of fact, and also may reflect a misapprehension of the applicable law in this area in that each incident of coercion alleged by Bauer was treated separately by the Director.

Assuming for the purposes of this discussion that the letter was threatening or intimidating, ² we observe that in some cases a single incident of misconduct may be deemed sufficiently coercive that it has a probable effect on an employee's actions at the polls. See NLRB v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24, 28 (8th Cir. 1974). Furthermore, even where an incident of misconduct, not insubstantial in nature, ³ is insufficient by itself to show that an election was not an expression of free choice, two or more such incidents, when considered together in the...