Hickman Harbor Service, a Div. of Flowers Transp. Co. v. N.L.R.B.

• Decision Date: 16 July 1984
• Docket Number: I,Nos. 83-5161,AFL-CI,83-5327,s. 83-5161
• Citation: 739 F.2d 214
• Parties: 116 L.R.R.M. (BNA) 3119, 101 Lab.Cas. P 11,120 HICKMAN HARBOR SERVICE, a DIVISION OF FLOWERS TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, National Maritime Union of America,ntervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 214

739 F.2d 214

116 L.R.R.M. (BNA) 3119, 101 Lab.Cas. P 11,120

HICKMAN HARBOR SERVICE, a DIVISION OF FLOWERS TRANSPORTATION

COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, National Maritime Union of America, AFL-CIO, Intervenor.

Nos. 83-5161, 83-5327.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1984.

Decided July 16, 1984.

Thomas O. McCarthy (argued), McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, St. Louis, Mo., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Lawrence E. Blatnik (argued) N.L.R.B., Washington, D.C., for N.L.R.B.

Sidney H. Kalban (Lead) (argued), Phillips & Cappiello, Ned R. Phillips, New York City, for National Maritime Union of America.

Before ENGEL and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Hickman Harbor Service, a Division of Flowers Transportation Company, seeks review of, and the National Labor Relations Board cross-applies for enforcement of, the Board's March 10, 1983 order, Hickman Harbor Service v. National Maritime Union, 266 N.L.R.B. 71 (1983), finding that Hickman had violated section 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with the National Maritime Union of America, AFL-CIO, as the duly certified representative of Hickman's employees. The union has been granted permission to intervene.

On August 19, 1981, the union filed a petition with the Board seeking certification as the bargaining representative of the company's employees. After a hearing, the parties agreed that the appropriate unit for election would be:

All deckhands, mates, welders, welders' helpers and mechanics employed by [the company] at its Hickman, Kentucky operations, excluding all master/pilots, all office clerical employees, and all professional employees, guards and supervisors as defined in the Act.

The election was held on October 16, 1981. The union received fourteen votes while thirteen votes were cast against representation by the union.

On October 22, the company filed timely objections to the election claiming that the union had made material misrepresentations regarding wage rates it had negotiated with another company and created an atmosphere of fear and confusion which prevented employees from exercising their free choice in a noncoercive atmosphere. After several requests for a hearing and orders by the Board, a hearing was finally held on February 23, 1982 to consider the company's objections. On April 2, the administrative law judge issued a report in which he made the following findings.

First, regarding the company's claim of material misrepresentations by a union representative, the administrative law judge found that a union campaign meeting was held approximately one week prior to the election. At that meeting, the union's representative, George Matz, sought to explain to those employees in attendance a wage agreement the union had negotiated with the Material Service Corporation, a company engaged in the same services as Hickman. According to the testimony of employees Donald Riley, Thomas Killibrew and Edward Reason, company witnesses at the hearing, Matz produced a copy of the union's Material Service contract and stated that deckhands at Material Service earned "$466.00 a week." The employees then testified that Matz used a calculator to multiply the figure by 52 to determine the yearly earnings of deckhands at Material Service. According to the employees' testimony, Matz stated that deckhands at Material Service earned in excess of $24,000 a year. Wayne Busby, an employee also in attendance at this meeting, corroborated this testimony, but added that Riley "pulled out a pencil and piece of paper" and independently determined that deckhands at Material Service earned in excess of $24,000. ¹

It was also found from the testimony of Matz and employees Joe Busby and Terry Saunders, who testified for the union, that those at the meeting "were given sufficient facts on which to accurately determine for themselves what [deckhands] earned on an annual basis." However, it was noted that Matz, "at some point," did carelessly refer to the figure of $466.68 when describing the weekly salaries of deckhands at Material Service. On the other hand, the testimony of the company's witnesses was discredited totally even though it was undisputed. As a result, the administrative law judge found that Matz had not made any material misrepresentations concerning wages in the union's Material Service contract even though they really were paid $150 a week less than he stated.

The company also claimed that an atmosphere of fear and intimidation tainted the representation election. This claim was rejected by the administrative law judge. Although the company had argued that union agent Matz had encouraged employees to engage in picketline violence, the administrative law judge found that most of the testimony of the company's witnesses was uncorroborated and contradictory. At the same time, however, he found Matz's testimony denying the charges to be "straightforward and convincing."

The administrative law judge also rejected the company's other contention that several incidents which occurred prior to the election date created an atmosphere of fear of reprisal among the employees. These included threats by union adherents to beat up union opponents, a threat to damage the van of a union opponent, the placing of anonymous phone calls on election-eve, and the vandalization of an automobile owned by, and physical assault of, an employee vocally opposed to the union. Although the administrative law judge found that all these events occurred prior to the election, he nonetheless concluded that they "did not create an atmosphere of fear of reprisal [to warrant] setting aside an election."

Here, the company argues that the Board's decision affirming the administrative law judge's factual and legal conclusions is not based on substantial evidence. They argue the administrative law judge repeatedly ignored undisputed testimony evidencing misconduct by union supporters, and improperly credited the testimony of witnesses even though there was no support in the record for their testimony. The company also maintains that the Board's retroactive application of its decision in Midland National Life Insurance Co., 263 N.L.R.B. 24 (1982), was improper because there was sufficient fraud in the union's representations to prevent a fair election.

Initially, the company asserts error in the Board's discounting the effect of the misrepresentations by union agent George Matz regarding wage rates the union had negotiated with the Material Service Corporation. The Board, relying on the findings of the administrative law judge, found that no material misrepresentations were made by the union and the company had sufficient time to respond to any union inaccuracies. While the administrative law judge evaluated the objections under the rule set out in General Knit of California, 239 N.L.R.B. 619 (1978), and Hollywood Ceramics Company, 140 N.L.R.B. 221 (1962), the Board chose to utilize its recent decision in Midland Life Insurance Company, 263 N.L.R.B. 24, 110 L.R.R.M. 1489 (1982), in reviewing the objections. In Midland Life, the Board held that it would no longer probe into the truth or falsity of campaign declarations, nor would it set aside an election on the basis of misleading campaign statements. This was a departure from the General Knit/Hollywood Ceramics rule, where the Board previously found campaign statements which involved "a substantial departure from the truth," which prevented an effective reply, and which could reasonably be expected to have a significant impact on an election, required the setting aside of an election. Hollywood Ceramics, 140 N.L.R.B. at 224. Now, the Board will intervene only "where a party has used forged documents which render the voters unable to recognize propaganda for what it is," or "when an official Board document has been altered in such a way as to indicate an endorsement by the Board of a party to the election." Midland Life, 110 L.R.R.M. at 1494 and n. 25. The Board expressly noted it was applying its Midland Life rule "to all pending cases in whatever stage." Id. at n. 24, quoting Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 1007 (1958).

Although Midland Life was decided subsequent to the certification of the union here, we find no error in the Board's retroactive application of the rule to this case. See National Posters, Inc. v. NLRB, 720 F.2d 1358, 1363 (4th Cir.1983). Concededly, Matz's statements were not completely accurate. Nor were the administrative law judge's findings in this area entirely supportable. Nonetheless, we uphold the Board's retroactive application of its Midland Life standard because the misrepresentation involved here was not "so pervasive and the deception so artful" that the employees exposed to it were unable to separate fact from fiction. Van Dorn v. NLRB, 736 F.2d 343, 348 (6th Cir.1984). Although the record is far from being clear on this point, it contains enough evidence to indicate that Matz's statements at the union meeting concerning the salary of deckhands at Material Service were not so deceptive that they affected the employees' right to free and fair choice in the collective bargaining context.

Furthermore, because we believe the Board's retroactive application of Midland Life "will best effectuate the policies underlying the agency's governing act," we see no error in applying the rule of Midland Life here. National Posters, Inc. v. NLRB, 720 F.2d at 1363. As we noted in Van Dorn, at 347, when reviewing a decision by the Board to narrow the instances in which an election will be set aside on the ground of campaign misrepresentations, we are limited to determining whether there has been an abuse of discretion. "The test for determining whether the Board has abused its...