N.L.R.B. v. Modine Mfg. Co., 73-1664
| Decision Date | 05 August 1974 |
| Docket Number | No. 73-1664,73-1664 |
| Citation | 500 F.2d 914 |
| Parties | 86 L.R.R.M. (BNA) 3197, 74 Lab.Cas. P 10,237 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MODINE MANUFACTURING CO., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jonathan Axelrod, Atty., N.L.R.B., Washington, D.C., for petitioner.
John D. O'Brien, Washington, D.C., for respondent.
Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit judges.
The single issue on this application for enforcement of an order of the National Labor Relations Board is whether respondent Modine Manufacturing Company was entitled to a hearing to determine whether the United Auto Workers (UAW) was the appropriate bargaining agent for Modine's employees. Following an election won by the UAW against the Sheet Metal Workers (SMW), the Board certified the UAW over exceptions by the company and the SMW. The company thereafter refused to bargain with the UAW and the Board found this refusal a violation of 8(a)(1) and 8(a)(5) of the National Labor Relations Act. We find that the Board's refusal to grant the company a hearing was proper and that the Board's conclusion that the company refused to bargain is supported by substantial evidence in the record as a whole. 1
A consent election was held at Modine's Trenton, Missouri plant on March 20, 1972, and the UAW defeated the incumbent SMW by a 93 to 86 vote. The SMW filed timely objections claiming (1) the UAW had misrepresented wage rates at Modine's Paducah, Kentucky plant by listing only the most favorable rates in the contract; (2) the UAW had represented to employees that they could not be called out on strike unless the local membership voted by a two-thirds majority, where as under the UAW constitution the two-thirds requirement only applied to the members present and voting at a meeting called for that purpose and a strike could be called in certain emergency situations without a two-thirds vote of the local; and (3) the UAW represented that its dues were two hours pay per month and could only be raised by the local membership or its delegates at the UAW national convention, whereas the UAW constitution permitted dues to be raised by a majority vote of the delegates at a national convention or by emergency action of a special convention called for that purpose by the International Union. The SMW further claimed that these representations were made in various handouts distributed between the 14th and 16th of March and that it did not have an adequate opportunity to respond even though each representation was commented upon in a handout distributed by the SMW on March 17th.
The Regional Director conducted an administrative investigation in which all interested parties, including the company, were given an opportunity to submit evidence. In his report recommending the objections be overruled and the UAW certified, the Regional Director found that none of the alleged misrepresentations were departures from the truth sufficient to justify overturning the election and, in any event, he found that the SMW had an adequate opportunity to respond and had in fact responded in each instance. At this point the company joined the SMW in filing objections to the report and requested a hearing. The Board denied the request for a hearing and certified the UAW, leading to the events which resulted in this enforcement application.
In this type of case, an election will not be overturned unless the misrepresentation (1) involves 'a substantial departure from the truth', (2) is made at a time when the other party does not have an adequate opportunity to respond and (3) may reasonably be expected to have a significant impact on the election. NLRB v. Georgia-Pacific Corp., 473 F.2d 206, 208 (8th Cir. 1973); Hollywood Ceramics Co., 140 NLRB 221, 51 LRRM 1600 (1962); see Bok, The Regulation of Campaign Tactics in Representation Elections, Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 82-92 (1964). The Board has a wide degree of discretion in the conduct of certification elections and a hearing is required to determine whether these criteria have been satisfied only where the opposing party has raised 'substantial and material factual issues'. We have said:
To raise such issues, ...
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