Bell Foundry Co. v. N.L.R.B.
| Decision Date | 15 September 1987 |
| Docket Number | Nos. 86-7118,86-7155,s. 86-7118 |
| Parties | 126 L.R.R.M. (BNA) 2705, 56 USLW 2279, 107 Lab.Cas. P 10,170 BELL FOUNDRY COMPANY, Petitioner/cross-respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/cross-petitioner. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James G. Johnson and Susan L. Schwartz, Los Angeles, Cal., for petitioner/cross-respondent.
Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., for respondent/cross-petitioner.
Petition for Review from a Decision and Order of the National Labor Relations Board.
Before KENNEDY and POOLE, Circuit Judges, and LOVELL, * District Judge.
After a landslide victory of the Teamsters Local 848 in a Stipulated Certification upon Consent Election, Bell Foundry Company (Bell, the Company) refused to bargain, claiming that the Union had been improperly certified because of alleged
election improprieties. The National Labor Relations Board certified the Union as the collective bargaining representative of Bell's employees. Bell petitions for review, and the Board cross-petitions for enforcement of its order. We agree with the Board that the Company is in violation of Section 8(a)(1) and (5) of the Labor Management Relations Act (the Act) in its refusal to bargain with the Union, and that the order of the Board should be enforced.
Bell operates a foundry in South Gate, California, and is an employer engaged in commerce within the meaning of section 2 of the Act, 29 U.S.C. Sec. 152. In September 1981, Wholesale Delivery Drivers & Salesmen Local 848 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the Union) filed a representation petition with the Regional Director of the National Labor Relations Board (NLRB) seeking certification as the collective bargaining representative of these employees.
The Board conducted a secret-ballot election on October 23, 1981. Of the approximately 123 eligible voters in the appropriate bargaining unit, 101 voted for the Union, 5 voted against the Union, 1 cast a void ballot, and 1 cast a challenged ballot.
The Company timely filed four objections to the election, claiming 1) that prior to the election, union officials had threatened employees with violence, 2) that union officials and supporters had improperly compelled employees to sign authorization cards before they would be permitted to attend group meetings of employees at the Union's offices and hall, 3) that certain of the Union's election-eve activities were coercive, and 4) that mishandling of the ballot box during the afternoon election session required that the election be set aside.
After conducting an administrative investigation into Bell's objections, the Board's Regional Director issued a report in December 1981, recommending that Bell's objections be overruled and the Union certified. Bell filed exceptions with the Board, including with its exceptions copies of the sworn declarations and evidence which it had submitted to the Regional Director.
In January 1985, the Board issued a Decision and Direction adopting the Regional Director's recommendation that the Company's objections (2), (3), and (4) be overruled, but finding that objection (1) and supporting evidence warranted a hearing into whether the Union had in fact threatened employees with violence. The case was remanded to the Regional Director for a hearing on this first objection only.
After hearing, a hearing officer issued a Report and Recommendation finding that Bell had presented no credible evidence of threats by the Union or its supporters against employees, and therefore recommending that objection (1) be dismissed and the Union certified. Bell filed timely exceptions.
On June 26, 1985, the Board issued a Decision and Certification of Representative in which it adopted the recommendation of the hearing officer and certified the Union as the employees' bargaining representative. In order to obtain judicial review, Bell refused the Union's subsequent demand to bargain, contending that the Union had been improperly certified. The Acting Regional Director issued a Complaint and Notice of Hearing, charging the Company with violating Section 8(a)(1) and (5) of the Act, 29 U.S.C. Sec. 158(a)(1), (5). Proceedings were transferred to the Board, which granted the General Counsel's motion for summary judgment and ordered that the Company bargain with the Union. From this decision of the Board Bell petitions for review. The Board has cross-petitioned for enforcement of its order.
The Board's wide discretion in supervising representation elections and in certifying a successful union is well-established. NLRB v. Sauk Valley Mfg. Co., 486 F.2d 1127, 1130 (9th Cir.1973); see also NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1450 (9th Cir.1986); NLRB v. Best Products Co., Inc., 765 F.2d 903, 908 (9th Cir.1985). Where, as here, the Board has held a hearing on a party's objection, the Board's findings of fact must be affirmed if supported by substantial evidence. NLRB v. Broadmoor Lumber Co., 578 F.2d 238 (9th Cir.1978).
The Company's first objection is that prior to the election, union officials and supporters directly and indirectly threatened employees with violence and other physical reprisals unless they supported the Union and it's activities. As the party challenging the election, Bell Foundry had the burden of showing by specific evidence at the hearing that 1) improprieties occurred, and 2) that they interfered with the employees' exercise of free choice to such an extent materially to have affected the election results. NLRB v. Krafcor Corporation, 712 F.2d 1268, 1269 (8th Cir.1983) (citing Beaird-Poulan Division, Emerson Electric Company, 649 F.2d 589 (8th Cir.1981). The Board's hearing officer determined after hearing that Bell had produced no credible evidence to meet even the first requirement. Bell argues that the Board's dismissal of the objection, based as it was upon the hearing officer's report, was not supported by substantial evidence and should therefore be set aside. This argument is meritless.
In her report, the hearing officer discussed in detail the testimony of the witnesses presented by Bell--Jerry Lawrence and Isidro Garcia--and found that neither had presented credible evidence regarding the alleged threats. The hearing officer discredited all of Lawrence's testimony as "vague, contradictory, ... unnecessarily inventive" and without corroboration. She found Garcia's testimonial demeanor poor and his testimony unconvincing. By contrast, the hearing officer fully credited the testimony of the Union's witness Harvey Lomeli, adjudging his demeanor "candid and sincere both on direct and on cross-examination."
Because the Board hearing officer who observes the witnesses and hears their testimony is in the best position to judge witness credibility, such determinations are entitled to great deference and will not be disturbed unless a clear preponderance of all the relevant evidence convinces the court that they are incorrect. NLRB v. Pacific International Rice Mills, Inc., 594 F.2d 1323, 1326 (9th Cir.1979). Our review of the testimony and of the hearing officer's determinations reveals that her credibility resolutions this case are cogent and well-supported.
The Company, however, claims that any lack of credibility of its witnesses was due entirely to "faded memories," which were the direct result of an "unconscionable delay" by the Board--approximately 3 years--before remanding objection (1) for hearing. Bell argues that this alleged prejudicial effect of delay by the Board constitutes sufficient grounds to deny enforcement of the bargaining order, citing NLRB v. Katz, 701 F.2d 703 (7th Cir.1983); NLRB v. Connecticut Foundry Co., 688 F.2d 871 (2nd Cir.1982); and NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2nd Cir.1981). But none of the cases upon which Bell relies stands for the proposition that delay is prejudicial in itself; 1 indeed, this court has not hesitated in the past to order hearings on election objections long after the objectionable conduct occurred. E.g. NLRB v. West Coast Liquidators, Inc., 725 F.2d 532 (9th Cir.1984) (); NLRB v. Belcor, Inc., 652 F.2d 856 (9th Cir.1982) (). Certainly, Bell has failed to demonstrate any specific prejudice resulting from the delay in this case. To the extent that delay may have adversely affected any testimony, it would have impacted equally upon the company and union witnesses. We therefore hold that the Board's dismissal of objection (1) after hearing was fully supported by substantial evidence.
We turn now to Bell's other objections.
The Board's denial of an evidentiary hearing on Bell's remaining election objections may be disturbed only for an abuse of discretion. NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th Cir.1982). The Company argues that the record before the Board in the representation proceeding improperly failed to include statements of Union witnesses taken by the Regional Director upon which he allegedly "relied" in his administrative investigation, and that reliance on what is an incomplete record constituted an abuse of discretion by the Board requiring remand.
In support of this contention the Company relies heavily on certain language in West Coast Liquidators v. NLRB, 725 F.2d 532 (9th Cir.1984), where we recognized that in some situations, meaningful review may be frustrated if the record does not include "all evidence relied upon by the regional director." Id. at 534. 2
We need not, however, labor with the Company's contention that the record was incomplete in this case, 3 because even if the Regional Director's failure to forward all of the affidavits before him can be...
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