Harlan# 4 Coal Company v. NLRB

• Decision Date: 10 January 1974
• Docket Number: No. 72-1997.,72-1997.
• Citation: 490 F.2d 117
• Parties: HARLAN #4 COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.2d 117 (1974)

HARLAN #4 COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 72-1997.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1973.

Decided January 10, 1974.

John E. Jenkins, Jr., Jenkins, Schaub & Fenstermaker, Huntington, W. Va., on brief for petitioner.

Fredric Sagan, N. L. R. B. for respondent; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Attys., N. L. R. B., Washington, D. C., on brief.

Before WEICK, EDWARDS and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This petition for review of an order of the National Labor Relations Board by the Harlan #4 Coal Company and the cross-application for its enforcement by the Board require us to determine whether there is substantial evidence on the record as a whole to support the Board's determination that the company's refusal to bargain with its employees' certified bargaining agent was an unfair labor practice in violation of sections 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5), (1).¹ We hold that there is.

The events culminating in this appeal began over three years ago on May 28, 1970, when a majority of the employees of the Harlan #4 Coal Company (the company) voted against having the United Mine Workers of America (the union) act as their exclusive bargaining representative. The union filed with the National Labor Relations Board timely objections to the election alleging that the company's improper conduct during the election campaign invalidated the result. On February 23, 1971, a hearing officer found that the company had engaged in improper conduct and recommended that the election be set aside. This determination was affirmed by the Board's Regional Director and a second election was directed. The company's request for review by the Board was denied because there were no substantial issues warranting review.

On May 5, 1971, the company filed a motion requesting that a new bargaining unit or different bargaining units be determined in light of changed conditions and circumstances including the closing of one mine and the opening of another. The Regional Director stayed the second election and ordered a hearing to determine the appropriate bargaining unit. On August 5, 1971, the Regional Director issued an order in which he redefined the appropriate bargaining unit to include all production and maintenance employees working in and around the coal mines of the company and its K.O.K. No. 1, K.O.K. No. 2 and K.O.K. No. 3 division mines. The company did not file a request for review of this redefinition of the unit prior to the second election.

On September 23, 1971, a majority of the company's employees voted for the union.² Shortly thereafter, the company filed four objections to the election contending that: (1) union representatives stationed themselves adjacent to the voting area and gave company employees the impression of surveillance and "checking off"; (2) on the eve of the election the union president sent to company employees a letter containing a material misrepresentation to which the company had no opportunity to respond; (3) the union disseminated false information that the company had coerced and intimidated its employees; and (4) the provision on the election ballot for a "neither" vote to be checked if an employee wanted neither of the two unions participating in the election to represent him was misleading.³

The Regional Director, in a supplemental Decision and Certification of Representation determined that the company's objections were without merit and, on November 15, 1971, certified the United Mine Workers as the exclusive bargaining agent of the company's employees. The company's request for review of the certification by the Board was denied on February 2, 1972, because it failed to raise substantial questions warranting review.

Meanwhile, on November 29, 1971, the union had requested the company to bargain. On December 10, the company's president informed the union that a request for review of the Regional Director's decision was pending and that the union should call back after the disposition of that request. On December 14, 1971, and again on February 4, 1972, two days after the Board had refused the requested review, the union requested the company to bargain. These requests were refused.

On February 22, 1972, the union filed with the Board an unfair labor practice charge that the company had refused to bargain with it even though it had been properly certified as the exclusive bargaining agent. On March 29, the General Counsel to the Board issued a complaint and notice of hearing against the company. On April 6, the company answered that it had not refused to bargain and that the election had been conducted in an inappropriate unit. On June 8, the General Counsel filed with the Board a motion for summary judgment against the company. Five days later, the Board issued an order transferring the proceedings to it, and a notice to show cause why the motion should not be granted. On June 23, the company filed a memorandum in opposition to the General Counsel's motion. The Board held that the issues raised by the company in opposition to the motion either had been or could have been litigated in the prior representation proceeding and therefore could not be relitigated in the unfair labor practice proceeding in the absence of newly discovered or previously unavailable evidence. Accordingly, it granted the motion for summary judgment. In its Decision and Order issued on September 18, 1972, 199 NLRB No. 15, the Board found that the company's refusal to bargain with the union violated sections 8(a) (5) and (1) of the National Labor Relations Act, reaffirmed the certification of the United Mine Workers, and required the company to bargain with it upon request and to post appropriate notices.

In this appeal from that order, the company argues that its refusal to bargain did not constitute an unfair labor practice because the election of September 23, 1971, should have been set aside for two reasons. First, the Regional Director should have held a hearing to determine whether union representatives improperly maintained surveillance of and checked off company employees. Second, the letter sent by the union president to company employees on the eve of the election contained a material misrepresentation to which the company had no opportunity to respond thereby destroying the "laboratory conditions" necessary to a valid election.

In reviewing the decision of the Labor Board, we observe that Congress has entrusted to the Board considerable latitude in resolving disputes concerning representation, and that our task is to determine whether the Board has acted arbitrarily in the exercise of its "wide degree of discretion." E. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 180 (6th Cir. 1967) cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364. We also observe that a party objecting to the validity of an election on the grounds of improper pre-election conduct must shoulder a heavy burden of proof to demonstrate by specific evidence that the election was unfair. E. g., NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 5 L.Ed. 2d 455 (1961); NLRB v. Dean Foods Co., 421 F.2d 664 (6th Cir. 1970) cert. denied, 398 U.S. 939, 90 S.Ct. 1843, 26 L.Ed.2d 271.

UNION SURVEILLANCE

In support of its objection that the union engaged in improper surveillance of its employees, the company submitted only a single affidavit by its treasurer, Ralph Fortner, who stated:

As I left the voting place just before 8 o\'clock, I noticed that Philpot and Hall, Petitioner representatives, went to an automobile which was parked about 20 feet from where the employees were lining up to vote. The headlights of that car pointed in the direction of the employees. The Petitioner representatives seated themselves inside the car in the front seat and were looking through the front windshield at the employees. I proceeded away from the area with other Employer representatives and walked down a railroad track about 400 to 500 feet. I was concerned as to whether the Petitioner representatives had left the voting area. I climbed up on a coal car and looked back and saw that the Petitioner representatives were still in the auto where I had previously seen them. This was at approximately 8:10 to 8:15 a. m. From the angle I was looking I could not see any of the voters and they could not see me. I believed by this time most of the employees at the mine had voted. The relationship of the Petitioner representatives to the line of voters was such as to give the clear impression that they had the voting line under surveillance and were checking off voters.

In response, union representatives who were near the polling place submitted affidavits in which they denied any improper conduct and disputed the allegations contained in the company affidavit:

Immediately prior to the opening of the polls we left the voting area and proceeded about 700 yards from the polling place and parked the car in which we were riding. We did not talk to anyone that voted during the period of time the polls were open and didn\'t recall that anyone that voted in the election passed our car. The men that voted were practically all at the polls when the polls opened.

The Regional Director declined to hold a hearing to determine whether the union had engaged in improper surveillance. In so doing he relied upon the Board's decisions in A. D. Julliard and Co., 110 N.L.R.B. 2197, 2199; Belk's Department Store of Savannah, Ga., Inc., 98 N.L.R.B. 280, 281; and International Stamping Co., Inc., 97 N.L.R.B. 921, 922, where the Board stated:

Although it is the policy of the Board to prohibit the keeping of

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