Kux Mfg. Co. v. N.L.R.B.

• Decision Date: 06 October 1989
• Docket Number: 89-5430,Nos. 88-6309,s. 88-6309
• Citation: 890 F.2d 804
• Parties: 132 L.R.R.M. (BNA) 2935, 113 Lab.Cas. P 11,687 KUX MANUFACTURING COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 804

890 F.2d 804

132 L.R.R.M. (BNA) 2935, 113 Lab.Cas. P 11,687

KUX MANUFACTURING COMPANY, Petitioner, Cross-Respondent, v.NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 88-6309, 89-5430.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1989.

Decided Oct. 6, 1989.

Ann L. VanderLaan, Steven J. Fishman(argued), Bloomfield Hills, Mich., for Petitioner, cross-respondent.

Aileen A. Armstrong, Associate Gen. Cousel, Judith A. Dowd, Barbara Sapin(argued), NLRB., Office of the General Counsel, Washington, D.C., Bernard Gottfried, Regional Director, Dennnis R. Boren, NLRB., Detroit, Mich., for respondent, cross deputy -petitioner.

Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

MILBURN, Circuit Judge.

Kux Manufacturing Company("the Company"), a Michigan corporation, petitions this court for review of a National Labor Relations Board order finding that it refused to bargain with the United Steelworkers ("the Union") as the certified bargaining representative of its employees, in violation of section 8(a)(1) and (5) of the National Labor Relations Act,29 U.S.C. Sec. 158(a)(1) and (5).The Company admits that it has refused to bargain with the Union, but insists that the Union was improperly certified by the Board.For the reasons that follow, we deny the Company's petition and enforce the Board's order.

I.

A.

On April 25, 1986, the Union filed a representation petition with the Board, seeking certification as the collective bargaining representative of the Company's production and maintenance employees.In an election the Board conducted on June 25, 1986, a total of 210 votes were cast, 113 for and 97 against the Union.The Union challenged three ballots, a number insufficient to affect the results of the election.

The Company filed objections to the election, claiming that the Union, through threats, bribes, and coercion, created an atmosphere of fear and intimidation which prevented a free and fair election.On July 18, 1986, the Board's regional director issued a Report and Recommendations on the Company's objections, recommending that several of them be overruled, but that a hearing be held on five objections:

Objection1(a): The Union threatened and coerced employees with reprisals if they did not vote for it at the election;

Objection1(c): The Union polled and interrogated employees regarding how they would vote in the election;

Objection1(d): The Union circulated a list of employees who did not support it in the election;

Objection 5: The Union offered and/or delivered cash payments, benefits, and entertainment to influence employees' votes; and

Objection 6: The Union engaged in active campaigning at or near the polling area prior to and during the election.

A hearing on the Company's election objections was conducted over nine days in February 1987.On April 24, 1987, the hearing officer recommended that the Company's election objections be overruled and that the Union be certified as the employees' bargaining representative.On April 8, 1988, the Board adopted the hearing officer's findings and certified the Union as the employees' bargaining representative.

By letter dated May 3, 1988, the Union requested that the Company furnish it with information concerning the employees' wages and employment.By letter dated May 18, 1988, the Company refused to furnish the requested information and further stated that it did not accept the Union as the employees' bargaining representative.

The Union filed a refusal to bargain charge against the Company on June 6, 1988, and on June 29, 1988, the General Counsel issued a complaint alleging that the Company's actions constituted an unfair labor practice.In its answer, the Company admitted that it had refused to bargain with the Union, but denied that the Union was properly certified, and set forth affirmative defenses relating to the certification election.

On August 5, 1988, the General Counsel filed a motion for summary judgment with the Board.On August 10, 1988, the Board transferred the matter to itself and issued a Notice to Show Cause why the General Counsel's motion for summary judgment should not be granted.The Company filed a response to the notice which essentially repeated the defenses it had previously raised.

On October 20, 1988, the Board issued a Decision and Order granting the General Counsel's motion for summary judgment.The Board found that all the issues raised by the Company were or could have been litigated in the prior representation proceeding and that the Company did not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor did it allege any special circumstances that would require the Board to re-examine the decision to certify the Union as the employees' bargaining representative.The Board ordered the Company to cease and desist from: (1) refusing to bargain with the Union, (2) refusing to provide the Union with relevant information, and (3) interfering with employees in the exercise of their section VII rights.This timely appeal followed.

As the claimed unfair labor practice is alleged to have occurred in Detroit, Michigan, this court has jurisdiction over the proceeding pursuant to section 10(e) and (f) of the National Labor Relations Act(29 U.S.C. Sec. 160(e) and (f)).

B.

Union organizer Bondie Rowell began meeting with Company employees in March 1986.Rowell had employees form an In-Plant Organizing Committee("IPOC" or "Committee") for the purpose of soliciting Union authorization cards and persuading employees to vote for the Union.Eight employees served on the IPOC, including Denise Beno and Sandra Perryman.Committee members solicited support for the Union at work and attended organizational meetings, where they assisted Rowell in answering employee questions.Rowell also told employees that if they could not reach him, they should contact Beno.

During the election campaign, the Union held a series of meetings with employees at the Rams' Horn restaurant, which was approximately one mile from the plant.These meetings occurred on April 19, May 17, June 5, June 17, and June 24, 1986.At these meetings, the Union paid for the employees' food and drink.Rowell informed the employees that the Union limited its support to $2.50 per employee per meeting, but when employees exceeded that limit, as they often did, he covered the difference himself and the Union reimbursed him.The Union eventually reimbursed Rowell approximately $600.00.Neither the Union nor Rowell ever purchased alcoholic beverages for any employees.

Several employees testified that in the weeks preceding the election, they heard rumors that employees who did not support the Union would lose their jobs if the Union won the election.Other employees testified that in the Company annex, a building next to the main plant where approximately 20 employees work, employee Lester Henry threatened that employees who did not vote for the Union would be "terminated" or "they'd get their ears [or other body parts] beat."

Approximately 20 to 25 employees attended the June 17 meeting.Beno sat at the head table with Rowell, who polled the employees and asked them how they planned to vote.After approximately 20 employees were polled, some objected to the question.Rowell then changed the polling to ask only if the employees present were eligible to vote.

During the meeting, IPOC member Sandra Perryman passed a piece of paper to employee Sharon Atkins which listed eight employees, including Atkins.Perryman characterized the paper as a "hit list" of anti-Union employees who would be terminated if the Union won the election.Also during the meeting, employee Mike Berzkalns questioned Rowell at length about the Union.When Berzkalns stated that the employees did not need the Union, Beno shouted, "You'll get yours when the Union gets in."Berzkalns left the meeting immediately.

On June 24, 1986, the day before the election, the Union held a final meeting with approximately 35 to 40 employees.Berzkalns was again in attendance and was again the target of hostility from Union supporters.Berzkalns got into another heated exchange with Rowell and Beno, and when Berzkalns walked out, Beno shouted that "he's one of the guys we're gonna have to take care of when we get voted in."Several employees testified that Rowell nodded his head and said, "Exactly."

Voting took place on election day between 5:30 a.m. and 6:30 a.m. and 1:00 p.m. to 4:00 p.m. on June 25, 1986, in the Company cafeteria.During the afternoon voting session, a group of approximately ten employees left the annex together to vote.Several employees known to be against the Union were in the group.As they left the annex, Lester Henry yelled that he would pay them $50.00 to vote for the Union.These employees testified that they asked if he meant a one-time payment or $50.00 per week.They testified Henry replied he meant per week, if they could prove how they voted in the secret election.

Henry continued his pro-Union electioneering in the polling area.While in the cafeteria waiting to vote in the afternoon, he yelled two or three times that it was the employees' last chance to change their minds and vote for the Union.Approximately 20 eligible voters were in line at the time Henry yelled his comments.Henry was so loud that the NLRB representative conducting the election told him to be quiet or leave; he quieted down.In addition, Rowell testified that a computer operator who was not eligible to vote in the election went into the polling area during the election and yelled "Vote Yes."

Sharon Atkins testified that when she went to vote at the beginning of the afternoon session, she observed the words "Vote Yes" scribbled in pencil on the voting booth platform.The words "Vote Yes" were visible from outside the voting booth, and remained there for an indeterminate amount of time.

Cynthia...