Electra Manufacturing Co. v. NLRB
| Decision Date | 26 February 1969 |
| Docket Number | No. 25638.,25638. |
| Citation | 408 F.2d 570 |
| Parties | ELECTRA MANUFACTURING CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Conrad Meyer, III, New Orleans, La., Kent E. Whittaker, Oscar S. Brewer, Kansas City, Mo., for petitioner; Brewer & Myers, Kansas City, Mo., Baldwin, Haspel, Maloney, Rainold & Meyer, New Orleans, La., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Robertamarie Kiley, Elliott Moore, Attys., N.L.R.B., Washington, D. C., for respondent.
Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District Judge.
This is a petition by Electra Manufacturing Co., for review of a decision of the National Labor Relations Board which held that the Company had violated sections 8(a) (1) and (5) and sections 2(6) and (7) of the National Labor Relations Act, for refusal to recognize or bargain with the Union. The order of the Board requires the Company to cease and desist from unfair labor practices, to bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO, and to post appropriate notices.
The Company, a Missouri corporation, is engaged in the manufacture, sale and distribution of electronic resistors, and is authorized to do business in the State of Texas. On August 31, 1966, the Union filed a petition with the Board, asking that an election be held among certain employees at the Electra plant in Mineral Wells, Texas, for the purpose of determining whether those employees desired to be represented by the Union for purposes of collective bargaining. On September 28, 1966, Electra and the Union entered into a stipulation pursuant to which an election was held on October 20 and 21, 1966.
Electra filed with the Regional Director timely objections to the election, urging that it was rendered invalid by reason of unfair conduct on the part of the Union. The Regional Director conducted an ex parte investigation (See 29 C. F.R. § 102.69(c)) and recommended that the Company's objections be overruled and that the Union be certified. The Board agreed with the Regional Director, and on April 20, 1967 the Union was certified as exclusive bargaining representative.
Thereafter, the Company refused to bargain with the Union, and the Union filed an unfair labor practice charge. After the complaint was issued, General Counsel for the Board filed a motion for judgment on the pleadings contending that no triable issues were raised. The Company's response again asserted the invalidity of the Union certification, and submitted certain offers of proof. The trial examiner granted the General Counsel's motion, concluding that "absent newly discovered or previously unavailable evidence or special circumstances, the Board's disposition of the representation matters is the law of the case".1 The Board adopted the trial examiner's decision and recommended order, finding Electra in violation of the National Labor Relations Act. The order requires the Company to cease and desist from the unfair labor practices found, to bargain with the Union upon request, and to post appropriate notices. It is from this order that the Company appeals. We hold that the Board's order must be set aside and the Company's petition for denial of enforcement granted.
The Company argues that the pre-election conduct and tactics of the Union rendered the election unfair and interfered with the free choice of the employees. It is undisputed that a handbill, captioned "Day of Decision", was distributed by the Union both during the election and over a period of twenty-four (24) hours prior thereto. Upon consideration of the contents of the handbill, the Regional Director concluded that abbreviated references to alleged employee benefits failed to comport exactly with the correct facts concerning such benefits, but concluded that such misstatements were not sufficient to render the election invalid because their impact on the election was insubstantial. The discrepancies pertained to such matters as holidays, seniority system, overtime, job security, jury duty pay, leaves of absence, company paid insurance and hospitalization, and sick leave. His conclusion was premised on the fact that "prevailing employee benefits are set forth in a bulletin published by the employer and brought to the attention of all employees upon interview at hire and by posting on all employee bulletin boards", and further that "the employer did issue campaign letters contradicting some of the Union's claims".
While a representation proceeding alone would not be subject to direct review by this Court, where an unfair labor practice is charged for refusal to bargain, and the employer has refused to recognize the certification, the election proceeding is properly here. Under those circumstances, the representation case and the unfair labor practice case become one, and the complete record is fully reviewable. NLRB v. Tampa Crown Distributors, Inc., 272 F. 2d 470 (5 Cir. 1959). See also: NLRB v. Genesco, 406 F.2d 393 (5 Cir. 1969). In order to arrive at a decision in this matter, we must consider the record to determine whether the Board's certification of the Union, and consequent finding of an unfair labor practice by petitioner, were based on facts supported by substantial evidence and on the application of correct legal standards. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The Board, in Hollywood Ceramics Company, Inc., 140 NLRB 36 (1962), formulated and announced the test to be applied in determining whether campaign literature containing misrepresentations could serve as a basis for invalidating an election. There the Board held that in order to set aside an election there must be a misrepresentation of a material fact which is a substantial departure from the truth, which is so timed as to prevent the other side from making an effective rebuttal, and may reasonably be expected to have a significant impact on the election. This...
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