Hecla Min. Co. v. N.L.R.B.
| Decision Date | 08 November 1977 |
| Docket Number | No. 76-2382,76-2382 |
| Citation | 564 F.2d 309 |
| Parties | 96 L.R.R.M. (BNA) 3340, 82 Lab.Cas. P 10,216 HECLA MINING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leonard L. Pickering (argued), of Pickering & Mahon, Albuquerque, N. M., for petitioner.
Richard A. Cohen (argued), Washington, D. C., for respondent.
Petition for Review and for Enforcement of an Order of the National Labor Relations Board.
Before GOODWIN and SNEED, Circuit Judges, and HAUK *, District judge.
This case is before us on petition for review, pursuant to Sec. 10(f) of the National Labor Relations Act (NLRA), of the final order of the National Labor Relations Board issued against Hecla Mining Company, which found that Hecla had committed unfair labor practices at its Lakeshore Project located south of Casa Grande, Arizona. The case requires us to assess conduct attributable to an employer in the course of a representation campaign in light of the restrictions imposed by the NLRA. For reasons set out below we decline to enforce the Board's order.
Background of the Case.
In elections held in 1971 and 1972, the production and maintenance employees of the Lakeshore Project rejected representation by five unions. 1 A third election was held on April 19, 1973 in which the unions were again defeated, this time by a vote of 238 to 229. Shortly after this third election, the unions filed objections to conduct which allegedly affected the election results. The Regional Director found that several of the objections presented substantial issues which merited a hearing, which was ordered and held in July. In his report, the Hearing Officer overruled two of the objections, but recommended that the election be set aside on the basis of a third objection relating to the allegedly coercive conduct of two individuals, Olson and Huntington.
The Officer concluded that Olson and Huntington, who were classified as "lead men," were actually supervisors within the meaning of the NLRA. He then found that the two had conducted unlawful interrogation and had threatened two employees with loss of benefits and employment, thereby interfering with the employees' making a "free and untrammelled choice in the election." The Board adopted the conclusions of the Hearing Officer and ordered a new election, which was held on March 6, 1974. The unions won this election by a vote of 329 to 291.
To this fourth election Hecla filed six objections. The Regional Director concluded after an investigation that two of those objections merited a hearing. The Board in a second supplemental decision granted a hearing, 2 which took place in July 1974. In his report the Hearing Officer rejected all the objections of the Company. In its third supplemental opinion, the Board adopted the conclusions of the Hearing Officer, with exceptions not relevant here. 3 It then certified the unions.
Disputing the unions' authority, the Company refused to bargain. The Board thereupon found that such refusal constituted an unfair labor practice.
The issue on appeal, then, is whether the Company's refusal constituted an unfair labor practice in violation of Sec. 8(a)(1) and (5) of the NLRA. This depends upon whether the Board's certification of the unions is valid, which in turn depends upon whether the Board erred (1) in setting aside the 1973 election and (2) in refusing to set aside the 1974 election. As we conclude that the 1973 election was valid and should not have been overturned, we decline to enforce the Board's order and do not pass on the merits of the objections to the fourth election.
Standard of Review.
There is no direct appeal from a decision of the Board with respect to representation elections. 4 As in this case, review typically occurs when an employer appeals the Board's decision that its refusal to bargain with a union constitutes an unfair labor practice. Magnesium Casting Co. v. NLRB, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971); McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190, 403 F.2d 916 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). Cf. Associated General Contractors of California, Inc. v. NLRB, 564 F.2d 271 (9th Cir. 1977).
Although the entire record is then reviewable, Trailmobile Division, Pullman, Inc. v. NLRB, 379 F.2d 419 (5th Cir. 1967), the standard of review is circumscribed. Coronet-Western v. NLRB, 518 F.2d 31 (9th Cir. 1975); I.T. & T. Corp. v. NLRB, 294 F.2d 393 (9th Cir. 1961). As we noted in the latter case, the Board is presumed to have a certain expertise in conducting and evaluating elections; its decisions should be deferred to unless it has committed an abuse of discretion. Findings of fact should be conclusive if supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This court uniformly has made a close examination of the record to determine whether in fact the conclusions of the examiner and the Board are fairly supported by the record, e. g. NLRB v. Sauk Valley Manu. Co., 486 F.2d 1127 (9th Cir. 1973); Sonoco Products v. NLRB, 443 F.2d 1334, 1336 (9th Cir. 1971); NLRB v. Lenkurt Electric Co.,438 F.2d 1102 (9th Cir. 1971); Don The Beachcomber v. NLRB, 390 F.2d 344 (9th Cir. 1968).
Regulation of Pre-election Conduct.
Because of the potential for overreaching by both employers and unions, Congress in the pre-election conduct setting has limited the freedom of speech which generally prevails in other contexts. 5 In enacting Sec. 8(c) as an amendment to the NLRA in 1947, however, Congress undertook to design the restraints in a manner that would encourage free debate and more adequately protect the First Amendment rights of employers and unions. 6 Linn v. Plant Guard Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). Only those restrictions are imposed which are essential to permit a free choice in voting; an employee's vote should neither be coerced nor based on an uninformed choice. Evaluation of pre-election conduct requires that a balance be struck that prevents coercion and maximizes information.
In order for an election to be overturned, there must be (1) proscribed conduct (2) which conduct prevented the employees from "freely registering their choice of a bargaining representative." 7 Sonoco Products v. NLRB, supra. Prior cases provide a number of touchstones in applying this test. As to the first part whether the speech constitutes proscribed conduct or not the Supreme Court has specifically classified certain types of speech as permissible and impermissible. As to the second part of the test the impact of the proscribed conduct factors to be considered include the rank of the individual who engaged in the conduct, whether the employer or the employee initiated the communication, the total background of all pre-election conduct, and of course any evidence directly suggesting that the conduct had either an isolated or a pervasive impact.
Applying the test to the facts applicable to the 1973 election, we first conclude that the challenged speech was in part protected and in part unprotected. We further conclude, however, that the impact of the speech was entirely isolated and that the speech could in no way have affected the outcome of the election.
Our standard for determining whether certain pre-election speech constitutes proscribed conduct is found in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), and was analyzed by this circuit in Lenkurt Electric Co., supra. These authorities establish that the employer is free to express opinions with respect to the consequences of unionization which have some reasonable basis in fact. Threats, veiled or direct, are proscribed. The line between proscribed threats and permissible predictions was drawn in Lenkurt Electric Co., supra, as follows:
It appears clear that an employer may not make predictions which indicate that he will, of his own volition and for his own reasons, inflict adverse consequences upon his employees if the union is chosen. This would constitute a threat of retaliation. Also, an employer may not, in the absence of a factual basis therefor, predict adverse consequences arising from sources outside his volition and control. This would not be a retaliatory threat, but would be an improper restraint nevertheless. N.L.R.B. v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). Thus, an employer may not impliedly threaten retaliatory consequences within his control, nor may he, in an excess of imagination and under the guise of prediction, fabricate hobgoblin consequences outside his control which have no basis in objective fact.
Application of these guides to the statements which Olson, a low-level supervisor, made to employee, Dippel, suggests that some transgressed the bounds of protected speech. Olson suggested that the union would not help the workers because they already had everything they could hope for. (Tr. 98). Judging from the record, this would appear to be an opinion without a reasonable basis in fact, as the Hearing Officer concluded. At the very least it may be considered a "hobgoblin consequence." On the other hand, the statement that the union was a "bad deal" because workers were paid better at Hecla than those at six other mines, worse than those at one mine and the same as those at another mine (Tr. 98) is merely a statement of fact. Similarly a statement that the free transfer policy of the company between work sites might be incompatible with the union structure, under which different unions, each with its own seniority system, organized different sites, is a factually-based opinion. See NLRB v. Lenkurt Electric Co., supra.
Another example of an opinion reasonably based on fact is that by Huntington, another...
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