Gulf Coast Automotive Warehouse Co., Inc. v. N.L.R.B.

• Decision Date: 05 February 1979
• Docket Number: No. 77-2784,77-2784
• Parties: 100 L.R.R.M. (BNA) 2649, 85 Lab.Cas. P 11,087 GULF COAST AUTOMOTIVE WAREHOUSE COMPANY, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1096

588 F.2d 1096

100 L.R.R.M. (BNA) 2649, 85 Lab.Cas. P 11,087

GULF COAST AUTOMOTIVE WAREHOUSE COMPANY, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 77-2784.

United States Court of Appeals Fifth Circuit.

Feb. 5, 1979.

V. Scott Kneese, Robert F. McBee, Houston, Tex., for petitioner, cross-respondent.

Elliott Moore, Deputy Associate Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, John S. Irving, Gen. Counsel, Peter M. Bernstein, Atty., N.L.R.B., Washington, D. C., for N.L.R.B.

Robert Allen, Washington, D. C., for other interested parties.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before GEE and VANCE, Circuit Judges, and HUNTER, District Judge. ^*

VANCE, Circuit Judge:

This is a petition by Gulf Coast Automotive Warehouse Company, Inc. for review of a National Labor Relations Board summary judgment and order, and the Board's cross-application for enforcement. The controversy arises out of an organizational effort among the company's warehouse employees.

Gulf Coast is engaged in the wholesale automotive parts business in Houston, Texas. In May 1976 the Retail Clerks Union, Local 455 petitioned to organize Gulf Coast's warehouse and clerical employees. Following a representation hearing on June 8 and 21, 1976, the appropriate bargaining unit was held to be all full- and part-time workers employed in the warehouse. ¹

An election was held on August 13, 1976. The union won by a vote of twenty-eight to six. Gulf Coast objected to certain union activities that it claims destroyed the "laboratory conditions" necessary for a valid election. Among the alleged illegalities were promises that initiation fees for employees signing union authorization cards prior to the election would be waived in violation of NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973); promises of reduced dues and increased strike benefits; payment of excessive fees to employees testifying at the representation hearing; and employment of harassing tactics designed to coerce employees into joining the union. Despite these objections, the election results were certified by the Regional Director after an ex parte investigation and the Board denied review. The company refused to bargain in order to test the validity of the certification, and the union then brought the unfair labor practice charge, which is the subject of this review.

Gulf Coast urges that the Board improperly granted summary judgment in the unfair labor practice proceeding and erroneously refused to set aside the election. Alternatively, it alleges that the Board erred in refusing to hold an evidentiary hearing on the company's objections.

It is axiomatic that the Board has wide discretion in determining whether an election has been fairly conducted. E. g., United Steelworkers of America v. NLRB, 496 F.2d 1342 (5th Cir. 1974); NLRB v. White Knight Manufacturing Co., 474 F.2d 1064 (5th Cir. 1973). We cannot overturn the Board's decision on factual disputes relating to representation matters unless we find it to be unsupported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Board's Regional Director overruled Gulf Coast's objections concerning harassment, overpayment of witness fees and illegal promise of increased benefits and reduced dues, finding that the evidence supporting these allegations did not raise substantial issues affecting the outcome of the election. We agree. We also conclude, however, that the Board did not properly resolve the dispute concerning the Savair violation. On this issue the case must be remanded for an evidentiary hearing.

A post-election hearing is required in representation proceedings only when objections to the election raise substantial and material factual issues. 29 C.F.R. § 102.69(c). This court has construed the standard to mean that a hearing must be held if the party opposing the election presents evidence which, if true, would warrant setting the election aside. E. g., NLRB v. White Knight Manufacturing Co., supra; NLRB v. Golden Age Beverage Co.,415 F.2d 26 (5th Cir. 1969); NLRB v. Monroe Auto Equipment Co., Hartwell Division, 406 F.2d 177 (5th Cir. 1969), Cert. denied 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973); NLRB v. Genesco, Inc., 406 F.2d 393 (5th Cir. 1969); United States Rubber Co. v. NLRB, 373 F.2d 602 (5th Cir. 1967).

Here, Gulf Coast submitted the sworn affidavits of two ² employees describing union representations that there would be no initiation fee for anyone signing union cards before the election. The same employees submitted affidavits to the Board during its ex parte investigation, and in considerable detail reiterated the promises of waiver made by the union. These allegations, if true, are sufficient to set aside the election, since they charge violations of the doctrine announced in NLRB v. Savair Manufacturing Co., supra. The Regional Director, however, found that no unlawful waiver had been made. To reach this conclusion, he relied on statements by union officials that no employee had been asked to join the union prior to the election and that the employees had been informed of the union's past practice of waiving initiation fees for all employees joining the union up to 30 days after the election. The Regional Director provided no opportunity for Gulf Coast to subject the testimony of the union witnesses to the "cleansing rigors of cross-examination." Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 571 F.2d 432, 434 (8th Cir. 1978).

The Regional Director's decision discloses that he placed disproportionate emphasis on several factors: (1) no employees were asked to actually join the union before the election, (2) the policy of the union is contrary to...