Dayton Hudson Dept. Store Co., a Div. of Dayton Hudson Corp. v. N.L.R.B.

• Decision Date: 01 March 1993
• Docket Number: 91-6314,Nos. 91-6197,s. 91-6197
• Citation: 987 F.2d 359
• Parties: 142 L.R.R.M. (BNA) 2585, 124 Lab.Cas. P 10,600 DAYTON HUDSON DEPARTMENT STORE COMPANY, A DIVISION OF DAYTON HUDSON CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Applicant, International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 359

987 F.2d 359

142 L.R.R.M. (BNA) 2585, 124 Lab.Cas. P 10,600

DAYTON HUDSON DEPARTMENT STORE COMPANY, A DIVISION OF DAYTON HUDSON CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Applicant International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, Intervenor.

Nos. 91-6197, 91-6314.

United States Court of Appeals Sixth Circuit.

Argued Aug. 11, 1992.

Decided March 1, 1993.

Joseph Ritok, Jr. (briefed), Lauren A. Rousseau-Rohl (briefed), Timothy K. Carroll (argued and briefed), Dykema & Gossett, Detroit, MI, for petitioner/cross-respondent.

Aileen A. Armstrong, Deputy Associate General Counsel, Howard E. Perlstein (briefed), Joan Hoyte (argued), N.L.R.B., Office of General Counsel, Washington, DC, Bernard Gottfried, Regional Director, N.L.R.B., Region Seven, Detroit, MI, for respondent/cross-applicant.

Jordan Rosen, Nancy Schiffer (briefed), Associate General Counsel, Intern. Union, UAW, Detroit, MI, for intervenor.

Before: KEITH and BATCHELDER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Petitioner/Cross-Respondent, the Dayton Hudson Department Store Company ("Company"), owns and operates department stores, including Hudson's Department Stores. This action involves one such Hudson's Department Store, located at the Westland Mall in Westland, Michigan.

On May 11, 1990, pursuant to agreement of Intervenor, the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America ("Union"), and the Company, the National Labor Relations Board ("Board") conducted a secret-ballot representation election at the Westland Mall Company store. Of the approximately 537 eligible voters, 274 cast votes for the Union and 179 against. ¹

On May 18, 1990, the Company filed timely objections to the election. On June 6, 1990, a hearing was held on the Company's objections. On June 21, 1990, the hearing officer issued a Report and Recommendations in which she recommended that the Company's objections be overruled and the Union be certified as the employee bargaining representative.

The Company then filed with the Board objections to the Report. On December 26, 1990, the Board issued a decision adopting the hearing officer's findings and certifying the Union as the exclusive bargaining representative. ² The Union subsequently requested the Company to bargain collectively. The Company, however, refused to bargain.

On February 1, 1991, the Union filed an unfair labor practice charge with the Board. Following the issuance of a complaint, on May 15, 1991, the Board ordered the Company to bargain with the Union. However, on or about May 30, 1991, the Company filed a Motion to Reopen Record. The Company alleged in its motion that immediately prior to receipt of the Board's May 15, 1991 Order, it had obtained newly discovered evidence that, prior to the election, the Union used forged authorization cards to generate additional support for the Union. The Company contended that because this newly discovered evidence, if accredited, would necessitate a new election, the Board was required to order the record reopened and a new hearing held.

On September 30, 1991, the Board denied the Motion on the ground that even if the allegation that the Union had used forged cards to misrepresent Union strength were accepted as true, under Board precedent, the use of forged authorization cards, unaccompanied by any allegation that the cards were actually shown to any employees, was an insufficient basis for reopening the record. On October 15, 1991, the Company petitioned this court for review. On November 12, 1991, the Board filed a cross-application for enforcement. On July 21, 1992, this court granted the Union's Motion to Intervene.

For the reasons that follow, we remand this case with instructions to reopen the record and take additional evidence and to reevaluate this case in light of the analysis set forth herein.

I.

The Company points to four incidents as the basis for its objections to the representation election. ³ The first of these involves the distribution of a letter by the Union to eligible voters. On or about May 8, 1990, three days before the election, the Union mailed to all eligible voters a letter that began with the greeting "Dear Fellow Hudson's Employee." The letter contains a number of references to "we" and "us" and purports to be authored by "Your Fellow Workers/The Westland Employees Organizing Committee." However, the Union concedes that the letter, which contains facts and arguments critical of the Company and supportive of Union representation, was actually prepared by a paid Union representative. The letter alleges, among other things, that the Company "claimed a profit of OVER 60 MILLION DOLLARS in our Westland Hudson's store alone last year ..." (emphasis in original). The Board acknowledges that the hearing officer was correct in finding that the total sales of this store for the previous year, 1989, were $52.5 million and the profits only $1.4 million, not $60 million, as claimed in the letter.

The second incident involves a leaflet that was handed out by the Union on the morning of the election. The leaflet contains the following passage:

Come Monday, [the Company] hope[s] to return to business as usual:

* * * * * *

Business as usual, where employees can retire with 17 years of service and must pay $43/mo. to maintain their health insurance and take home only $40/mo., while [Company executives] Mackey, Gibson and Watson will retire with huge pensions and no health insurance premiums.

The Company contends that this statement grossly misrepresents that Company executives receive preferential treatment as to health benefits. The Company also alleges that the timing of this leaflet, which was handed out within hours of the time the polls opened, and of the letter, which apparently was received by eligible voters shortly before the election, made it impossible for the Company to respond meaningfully to the alleged inaccuracies.

The third alleged election impropriety involves the presence of two Union representatives, Ray Westfall and Bob King, and a pro-Union employee, John Madgwick, for approximately eight to ten minutes during the morning election period, ⁴ in the restaurant cashier counter and candy counter areas, ⁵ a part of the Company premises that a Board agent had ruled off-limits for Company and Union representatives during the election. As found by the hearing officer, these three individuals were present in an area near which voters logically would travel to reach the polling area. However, the hearing officer also found that the only encounter between any of these individuals and an eligible voter occurred when Westfall, while outside a restroom that is across the corridor from the candy counter and adjacent to the buffeteria polling area, said "Hello" to one employee. There was no evidence that any other voters observed the three individuals, that they engaged in any electioneering while in this area, or that they engaged in any electioneering whatsoever in the buffeteria room itself.

The final incident to which the Company objected at the June 6, 1990 hearing involved allegedly coercive conduct by Union representative Westfall. On the morning of the election, in the presence of three employees who were handing out anti-Union literature, as well as a number of pro-Union employees, Westfall carried onto the Company premises a two-foot pipe wrench that the Union contended was to be used in opening a helium tank so that the Union could inflate balloons. However, according to the Union, because it was too windy for balloons, the wrench was not needed, and so Westfall "pitched" the wrench onto a nearby ledge approximately seven to fifteen feet away from the anti-Union employees. The Company contends that the Union had no need for the wrench because it knew the wind was too strong for balloons and, therefore, that Westfall's act of tossing the pipe wrench must have been intended to intimidate anti-Union employees. There was no evidence that Westfall or any other Union supporters uttered any threats or engaged in any other threatening conduct.

II.

We address two issues on appeal. First, we must determine whether the Board erred in refusing to set aside the election on the basis of the alleged election improprieties. Second, we must determine whether the Board erred in denying the Company's motion to reopen the record and hold a new hearing on the issue of forged authorization cards.

We first consider the pipe wrench incident. We find that the Board did not err in refusing to set aside the election on the basis of this incident. A party seeking to set aside the results of a representation election "has the burden to show that the election was not fairly conducted." Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 316 (6th Cir.) (per curiam) (quoting NLRB v. Bostik Div., 517 F.2d 971, 975 (6th Cir.1975), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987)). If the Board's findings are supported by substantial evidence, they will be upheld. Hickman Harbor Serv., a Div. of Flowers Transp. Co. v. NLRB, 739 F.2d 214, 218 (6th Cir.1984). Moreover, proof of physical threats, without more, will not suffice; "[r]ather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." Tony Scott Trucking, 821 F.2d at 316 (quoting NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969)).

The Union provided a reasonable explanation for the presence of the pipe wrench on the Company premises, namely, to assist in opening a helium tank. When that became unnecessary, Westfall tossed the pipe wrench onto a ledge approximately three feet from where he was standing and...