Howell Refining Company v. NLRB, 24802.
| Decision Date | 12 August 1968 |
| Docket Number | No. 24802.,24802. |
| Citation | 400 F.2d 213 |
| Parties | HOWELL REFINING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank S. Manitzas, Theo F. Weiss, San Antonio, Tex., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, William H. Carder, Atty., NLRB, Washington, D. C., for respondent.
Before RIVES, GEWIN and THORNBERRY, Circuit Judges.
Howell Refining Company petitions this court to review and set aside an order of the National Labor Relations Board issued against it on May 10, 1967. The order requires the company to cease and desist from unfair labor practices, to bargain with the Oil, Chemical and Atomic Workers International Union, and to post appropriate notices. The Board cross-petitions for enforcement of its order. We deny enforcement and remand the case for further proceedings.
To place the questions presented in context we shall summarize the events leading up to the Board's May 10 order. On March 23, 1966, the union filed a representation petition with the Board requesting certification as the bargaining agent for a unit consisting of all truck and transport drivers, truck and auto mechanics, and production and maintenance employees in the company's San Antonio and Corpus Christi, Texas, plants. The company contended that separate units at each of the two plants were appropriate. Following a hearing the Regional Director determined that the multi-plant unit requested in the union's petition was warranted. The company also objected to the exclusion from the bargaining unit of certain clerical employees, but the Regional Director resolved this issue in favor of the union also. The company promptly requested that the Board review the Regional Director's decision, urging the appropriateness of separate units and the inclusion in each unit of the clerical employees. The Board denied the request on the ground that it "raised no substantial issues warranting review except as to the unit placement of yield clerks." Consequently, the Regional Director's decision was amended to permit yield clerks to vote subject to challenge.
An election in June resulted in a union victory, thirty-eight votes being cast for the union, eighteen against the union, and four challenged ballots. The company filed timely objections to the election, alleging that conduct attributable to the union had improperly influenced its outcome. It also objected again to the Regional Director's determination of the appropriate unit. Additionally, the company attacked the "names and addresses" rule established by the Board in Excelsior Underwear, Inc.1 After conducting an administrative investigation, the Regional Director issued on August 19, 1966, a Supplemental Decision, Order and Certification of Representative in which he overruled the company's objections and certified the union as the exclusive bargaining representative. In September the company filed timely objections to the supplemental decision, contending that the Regional Director's rulings were erroneous and that, in any event, a formal hearing on the objections had been improperly denied. On November 3, 1966, the Board denied the company's request on the ground that it raised no substantial issues warranting review.
Despite the certification by the Board, the company refused to recognize or bargain with the union. On December 15, 1966, in response to the union's charges, a complaint issued against the company alleging violations of section 8(a) (1) and (5) of the National Labor Relations Act.2 In its answer the company attacked the validity of the certification and again denied the appropriateness of the bargaining unit. General Counsel filed a motion for summary judgment on the ground that the company's answer had raised no triable issues of fact. In its answer in opposition to the motion, the company reasserted the invalidity of the union certification and attached copies of documents and other evidence previously submitted in the representation proceedings. In addition, the company stated that it had been bargaining with the union in good faith since January 16, 1967, and proposed that the disposition of the motion be suspended pending the outcome of negotiations. The union opposed the request on the ground that the company had not recognized it as the certified representative of the employees. The General Counsel also opposed the request on the basis that occurrences subsequent to December 1966 were irrelevant to the issues presented by the complaint.
The Trial Examiner found that the case was not mooted by subsequent negotiations between the parties. He further concluded that the issues raised by the company had already been decided in the representation proceeding; that he was bound by those determinations; and that, consequently, no hearing was necessary in the absence of newly discovered or previously unavailable evidence. Accordingly, the Examiner found that the company had violated section 8(a) (1) and (5) of the Act and granted the motion for summary judgment. The Board affirmed the Examiner's ruling, adopted his finding that the company had violated the Act by refusing to recognize and bargain with the union, and issued the order which the company now seeks to set aside.
The company contends that the Board's order should be vacated because (1) the Board abused its discretion in determining that a multi-plant unit was appropriate; (2) the Board erred in failing to find that the disclosure of the names and addresses of employees to the union invalidated the election; (3) the Board erred in failing to find that the union and its supporters engaged in preelection conduct that rendered a free expression of choice impossible; and (4) the Board's refusal to grant a post-election hearing on the company's claim of unlawful union conduct constituted a denial of due process.
We have given careful consideration to each of the above contentions and we have reviewed the entire record. We find no abuse of discretion in the Board's determination that a multi-plant bargaining unit is appropriate. We also find that the submission by the company of employees' names and addresses as required by the Excelsior rule does not invalidate the election. However, we do not reach the question of whether there was interference with the free choice of the employees because we conclude that this question should not have been decided by the Board summarily and that the company should have been granted a hearing. Consequently, the order of the Board is set aside and the case is remanded to the Board for a hearing on the company's claim that conduct attributable to the union generated such an atmosphere of fear, concern, and confusion among the employees that a free expression of choice in the election was rendered impossible.
A considerable amount of evidence was presented by the parties on the multi-plant-unit question at the hearing held during the representation proceeding. The Board considered all the pertinent facts and determined that a multi-plant unit was appropriate in the instant case. The company asserts that this decision of the Board was in violation of section 9(c) (5) of the National Labor Relations Act which provides:
In determining whether a unit is appropriate for purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.3
As clearly appears from its terms, this provision only prohibits the extent of organization from being the controlling factor in determining the appropriate unit.4 The record refutes the company's argument that the Board's determination was controlled by the extent of union organization. The evidence shows that the Board considered numerous and various factors and found from the evidence presented (1) that the production operations, job classifications, and employee skills were essentially similar in the two plants; (2) that employees were occasionally interchanged between the two plants; and (3) that the company's managerial and labor practices, pay scales, and employee-benefit program were centrally administered. These findings are amply supported by the record. We therefore conclude that the Board's designation of a multi-plant unit is clearly reasonable and well within its wide discretion.5
The company contends that the election should have been set aside because it was forced, under protest, to comply with the Board's Excelsior rule. This rule requires employers to file with the Regional Director a list containing the names and addresses of all employees eligible to vote in the election. The Regional Director then makes the list available to all parties involved in the election. The company's primary contention is that the disclosure of this information afforded the union an unfair and inequitable opportunity to propagandize through home visitation and made possible certain alleged coercive conduct on the part of the union.6
The Board's Excelsior rule was adopted to guarantee all participants in the election access to the electorate and to ensure an informed electorate. The rule eliminates the time-consuming process of investigating challenges to voter eligibility on the eve of elections solely because of a lack of knowledge of voters' identity.7 We find the rule to be a valid exercise of the Board's power to ensure employees a fair and free choice in the selection of their representative.8 The possibility that the union or its supporters abused the opportunity of communicating with the employees in this case is insufficient, in our opinion, to invalidate the Excelsior rule or to set aside the election.9
The company's allegation that conduct attributable to the union destroyed the laboratory conditions under which the election should have been conducted and improperly influenced its outcome may be divided for purposes of discussion into three parts: (1) preelection...
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