Louis-Allis Company v. NLRB

• Decision Date: 14 June 1972
• Docket Number: No. 71-1361.,71-1361.
• Citation: 463 F.2d 512
• Parties: The LOUIS-ALLIS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

463 F.2d 512 (1972)

The LOUIS-ALLIS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1361.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 1972.

Decided June 14, 1972.

Rehearing Denied July 5, 1972.

COPYRIGHT MATERIAL OMITTED

M. J. Diederich, Beverly Hills, Cal., for petitioner.

Richard J. Scupi, Washington, D. C., for intervenor.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael S. Winer, Atty., N. L. R. B., Washington, D. C., Peter G. Nash, Gen. Counsel, Elliott Moore, Atty., N. L. R. B., for respondent.

Before KILEY, STEVENS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

This appeal involves the Louis-Allis Company's attempt to test the validity of an election certification issued by the National Labor Relations Board by refusing to bargain with the certified union. The Board has filed a cross-application for enforcement of its decision as reported at 190 NLRB No. 54. We affirm the Board's certification and order the appellant to desist from its refusal to bargain.

The facts are readily summarized. On August 26, 1970, the International Union of Electrical, Radio and Machine Workers won an election at the Company's Evansville, Indiana plant. The election, conducted under the auspices of the National Labor Relations Board, was challenged by the Company through the timely filing of specific objections to the manner in which the election was conducted and to certain conduct by the Union which allegedly affected the election result. These objections raised questions which the Company believed necessitated evidentiary hearings. The Board's regional director conducted an investigation into the Company's objections and, concluding that they were without merit, overruled them and certified the election results. The regional director's findings were made without resort to evidentiary hearings. The Company then sought unsuccessfully to have its objections reviewed by the Board.

At this point, the Union demanded that the Company commence collective bargaining; the Company refused. An unfair labor practice charge alleging that the Company had violated section 8(a) (5) of the National Labor Relations Act,¹ was filed and a complaint issued. The Company's answer raised as defenses the issues posed and resolved by the regional director's disposition of the original objections. Counsel for the Board then moved for summary judgment, arguing that all the issues raised had previously been litigated in the representation proceeding and should not be relitigated in an unfair labor practice proceeding. The Company responded that, while no new issue existed, to grant a summary judgment would effectively deny the Company its due-process protections since no hearing had ever been held on its original objections.

The Board, in granting summary judgment, took official notice of the regional director's investigation into the Company's objections at the representation proceeding and ruled that these issues had been adequately resolved. Accordingly, the Board found that the Company's refusal to bargain with the certified representative of its employees violated sections 8(a) (5) and (1) of the act. Based upon that finding, an order to cease and desist from the unlawful conduct was issued. The Company's appeal from that order is presently before us.

The basic issue before this court is whether the Board abused its discretion in refusing to set aside the election without holding an evidentiary hearing on the Company's objections. Within that broad question, the Company articulates two specific issues which, if resolved favorably to the Company, would compel reversal of the Board's order. First, the Company argues that the election itself was invalid due to certain practices engaged in by the Union; and second, that the review procedure which failed to provide for a hearing into the factual basis for the objections raised was inadequate.

I.

In challenging the validity of the election, the Company raises six specific objections to Union activity: (1) that the Company was given inadequate time in which to campaign prior to the election; (2) that the election date was set while unfair-labor-practice charges were pending against the Company; (3) that the regional director was prejudiced against the Company; (4) that the Union illegally polled the employees before the election; (5) that the Board refused to challenge group leaders as it had indicated it would do, and thereby required the Company's observer to do so; and (6) that the Union mailed and distributed false and misleading information to employees at a date so close to the election that the Company had no opportunity to respond.

As to the Company's objection that the regional director precluded the Company from adequately presenting its position to the employees by directing that the election be held on August 26, 1970, instead of September 4, 1970, as the Company had requested, our review of the record leads us to believe that the Board was correct in determining that the objection was without merit. The Fifth Circuit, in a recent per curiam opinion, N.L.R.B. v. Keller Aluminum Chairs Southern, Inc., 425 F.2d 709, 710 (5th Cir. 1970), held that the selection of a proper time for holding an election is a matter within the discretion of the Board under section 9(c) of the National Labor Relations Act.² See also, Surprenant Mfg. Co. v. Alpert, 318 F.2d 396, 399 (1st Cir. 1963); N.L.R.B. v. Fresh'nd-Aire Co., 226 F.2d 737, 740 (7th Cir. 1955). In order for us to find that the regional director abused his discretion in the selection of the August 26 election date, we would have to determine from the record that, as a result of an unreasonably short time period allowed for campaigning, the employees were deprived of an opportunity to become informed as to the election issues. The record does not support such a finding.

The election petition was filed on March 26, 1970, but due to a rather tortuous chain of unfair-labor-practice charges and countercharges by both the Company and the Union, the regional director did not set the August 26 election date until August 14. Thus, the Company had 12 days from the time the final date was determined until the actual election, and 42 days between the direction of the election and the date of the election, to present its side to the employees. As the regional director noted in denying the objection, the 42 days to campaign well exceeded the average time (25 to 30 days) between the Board's direction of an election and the date of the election. Additionally, even if the Company chose not to campaign until an actual date for the election was set, it nevertheless had 12 days in which to present its position. The Company could have taken advantage of the 42-day period between the direction of the election and the actual election date. Inasmuch as it elected not to do so, it should not now be heard to complain that it was denied adequate time in which to present its position.

The Company's second objection charges that, in violation of long-standing N.L.R.B. policy, the regional director scheduled the election while an unresolved charge alleging violations of sections 8(a) (1) and (2) of the act were pending against the Company. The Company's position in regard to this objection will not bear scrutiny. Although it is true, as the Company argues, that the Board has expressed a policy against proceeding in a representation case while a charge is pending,³ that policy is not without exception. Indeed, the Field Manual contains a specific exception to that policy which governs the case before us. Subsections 11730.1 and 11730.4a provide:

"An R representation case may be processed in the face of the pendency of a related C case (except, see 11730.4) if the party filing the charge is willing that the R case be processed anyhow. He expresses his wilingness by executing a request to proceed." "A request to proceed will not be honored in any case where the charge alleges 8(a) (2) . . . conduct, except upon specific authorization. . . ."

Thus, in a case such as this, where the regional director obtained a request to proceed from the charging party and a specific authorization from the Board with respect to the 8(a) (2) charge, it was proper for the election to be scheduled prior to resolution of the charges.

The Company's third objection is similarly without merit. As the regional director noted in overruling the Company's objection to the issuance of a complaint immediately prior to the election, "Nowhere in either the NLRB Field Manual or the Statement of Procedures is a regional director prohibited from issuing a complaint merely because of the pendency of an election." The Company, basing its objection on section 101.7 of the Board's Statement of Procedures,⁴ argues that this section prohibits the issuance of a complaint until the parties have had an opportunity to settle the dispute. From that premise it concludes that the regional director's failure to provide an opportunity to settle the dispute prior to the issuance of a complaint is conclusive evidence that the regional director was prejudiced against the Company.

We find the Company's conclusion a non sequitur. Section 101.7 clearly provides for the exercise of discretion in the timing of complaints. It gives the regional director the power to choose between formal and informal resolution where the nature of the proceedings indicates one or the other is more advantageous. There is nothing to support the charge of bias or prejudice in this instance since the regional director's decision satisfactorily explains why the complaint was issued when it was.⁵ Under these circumstances, we find no abuse of discretion.

The Company next objects to a petition circulated by the Union calling for an election at the earliest possible moment. The objection characterizes the petition as a coercive poll of employees and, as such, condemns it as...