Home Town Foods, Inc. v. NLRB, 23912.

• Decision Date: 26 June 1967
• Docket Number: No. 23912.,23912.
• Parties: HOME TOWN FOODS, INC. d/b/a Foremost Dairies of the South, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 241 (1967)

HOME TOWN FOODS, INC. d/b/a Foremost Dairies of the South, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 23912.

United States Court of Appeals Fifth Circuit.

June 26, 1967.

John Bacheller, Jr., Fisher & Phillips, Atlanta, Ga., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert S. Hillman, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Glen M. Bendixsen, Atty., N. L. R. B., Washington, D. C., for respondent.

Before COLEMAN and AINSWORTH, Circuit Judges, and CARSWELL, District Judge.

COLEMAN, Circuit Judge.

Home Town Foods, Inc., seeks review of an NLRB order, asking that the order be set aside or, alternatively, that the case be remanded for a hearing. The Board cross petitions for enforcement. In the existing status of the case we deny enforcement and remand for a hearing.

Home Town Foods, doing business as Foremost Dairies of the South, manufactures ice cream at its Sylacauga, Alabama, plant. On April 8, 1965, the union filed a petition for certification as bargaining agent of all production, shipping, driver-salesman and transport employees at the plant.¹ After a hearing the Regional Director designated a bargaining unit, decided certain disputed classifications, and reserved decision on others. A representation election was scheduled for July 29, 1965 at the employer's snack bar.² The election resulted in fifty-two valid votes for the union, forty-five against it, and nine challenged ballots.³

The employer filed detailed objections to union conduct allegedly affecting the election results and furnishing numerous employee affidavits in support of its contentions. The Regional Director conducted an ex parte investigation of these charges. The content of the employee statements has never been fully disclosed, although references to them are made in conclusory form in the Regional Director's decision. The employer was not permitted to be present when the statements were taken.

Ten days before the Regional Director released his decision pursuant to the ex parte investigation, the employer's attorney wrote the Regional Director requesting a hearing⁴ in the event the Director's office considered the evidence insufficient to sustain the employer's objections. The employer states he received no answer to this request.

The Regional Director's decision overruled all objections on the ground they did not raise material or substantial issues affecting the results of the election, and certified the union. The employer's request for Board review of the decision was summarily denied, as was a request to reconsider. Contesting the validity of certification, the employer refused to bargain. Charges were filed by the union, and a complaint issued alleging violations of §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act. The employer's answer denied the validity of the certification and asserted violations of Board rules and of due process.

At the hearing on the refusal to bargain charges, the Trial Examiner refused to consider the merits of the employer's evidence on validity of the election and certification. He did, however, allow the affidavits previously furnished the Regional Director in the representation case to be placed in the record. The Examiner ruled the refusal to bargain was unlawful and ordered bargaining. The Board affirmed. Hence the case reached us.

Where a party seeks to overturn the result of an election, the burden is on him to show that the election was unfairly conducted. NLRB v. Mattison Mach. Works, 1961, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455; NLRB v. Huntsville Mfg. Co., 5 Cir., 1953, 203 F.2d 430. On this record we do not feel warranted in declaring the election invalid. We thoroughly realize, however, that the employer, without the aid of a hearing in which its objections could have been aired, has faced a most difficult task in carrying its burden.

The Act provides only for pre-election hearings. Board rules, however, require an investigation when post-election objections are filed. If substantial and material factual issues exist, they can be resolved only after a hearing. 29 C.F.R. § 102.69(c). Specifically, the objector must supply the Board with evidence which prima facie would warrant setting aside the election. United States Rubber Co. v. NLRB, 5 Cir., 1967, 373 F.2d 602, 606; NLRB v. Douglas Co. Elec. Membership Corp., 5 Cir., 1966, 358 F.2d 125, 129. "* * * Specific evidence of specific events from or about specific people * * *" is necessary. Douglas Co. Elec. Membership Corp., supra at 130.

The employer's objections to the election, filed in the certification proceedings, alleged six specific acts of the union or union supporters which were claimed to vitiate the election and certification. Specific persons were described by role, and the union's chief agent was named. The objections alleged union tactics of terror and coercion. Threats of physical harm to opponents of the union, rumors of loss of jobs, actual equipment sabotage, and other acts of violence were laid to union proponents and to members of a union then on strike from another plant. The Regional Director made no findings on the truth of these allegations. Instead he concluded that even if they were true, coming as they did from rank-and-file employees, the union could not be held responsible.

The affidavits introduced by the employer in the refusal-to-bargain proceedings told the following story about the conduct of the election:

The snack bar at the employer's plant, where the election was held, is totally open to public view, being a crescent-shaped, glass-enclosed room near the street. During the polling, former employees and other persons sat in parked cars visible from the snack bar. One of them carried a small sign reading "Vote Yes".

During the voting, several of the striking employees...