N.L.R.B. v. Claxton Mfg. Co., Inc., 79-1527

• Citation: 103 LRRM 2980,613 F.2d 1364
• Decision Date: 21 March 1980
• Docket Number: No. 79-1527,79-1527
• Parties: 103 L.R.R.M. (BNA) 2980, 88 Lab.Cas. P 11,970, 5 Fed. R. Evid. Serv. 1102 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLAXTON MANUFACTURING COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1364

613 F.2d 1364

103 L.R.R.M. (BNA) 2980, 88 Lab.Cas. P 11,970,

5 Fed. R. Evid. Serv. 1102

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLAXTON MANUFACTURING COMPANY, INC., Respondent.

No. 79-1527.

United States Court of Appeals Fifth Circuit.

March 21, 1980.

Elliott Moore, Deputy Associate, Gen. Counsel, Michael F. Messitte, N.L.R.B., Washington, D.C., for petitioner.

Mitchell, Clarke, Pate & Anderson, James W. Wimberly, Jr., James P. Cobb, Atlanta, Ga., for respondent.

Application for Enforcement of An Order of the National Labor Relations Board.

Before GODBOLD, GEE and RUBIN, Circuit Judges.

GODBOLD, Circuit Judge:

This case concerns the requirement that as a matter of due process an evidentiary hearing must be conducted when, following a representation election, the losing party files with the National Labor Relations Board regional director evidence that prima facie raises substantial and material issues that would warrant setting aside the election.

Following a representation election that the union won, ¹ Claxton Manufacturing Company filed 9 objections, supported by 20 affidavits, to conduct allegedly affecting the election results. The acting regional director conducted an administrative investigation but held no hearing. By a 22-page written report he recommended that the Board overrule the objections and certify the union. The Board adopted his findings and recommendations.

Claxton refused to bargain with the union, Laborer's International Union of North America, and refused to supply information concerning unit employees and fringe benefits and work rules. The Board brought unfair practice charges and was granted summary judgment. It seeks enforcement of its order requiring Claxton to bargain and to provide the requested information.

We decline to enforce the Board's order because of our conclusion that Claxton was entitled to a hearing on some of its objections.

The Board has wide discretion in determining whether an election has been fairly conducted, and its decisions warrant special respect on review. E. g., Gulf Coast Automotive Warehouse Co. v. NLRB, 588 F.2d 1096 (5th Cir. 1979); United Steelworkers of America, AFL-CIO v. NLRB, 496 F.2d 1342 (5th Cir. 1974). But this discretion is not unlimited. Due process requires the Board to grant "a (post-election) hearing to a losing party who has supplied prima facie evidence raising substantial and material issues that would warrant setting the election aside." Gulf Coast, supra, 588 F.2d at 1100; See NLRB v. White Knight Mfg. Co., 474 F.2d 1064, 1068 (5th Cir. 1973); NLRB v. Golden Age Beverage Co., 415 F.2d 26, 32-33 (5th Cir. 1969); U.S. Rubber Co. v. NLRB, 373 F.2d 602, 606 (5th Cir. 1967); 29 C.F.R. § 102.69(d) & (f). The issue of whether the employer has made an adequate showing is " 'a question of law and ultimately a question for the courts,' " Luminator Division of Gulton Industries, Inc. v. NLRB, 469 F.2d 1371, 1374 (5th Cir. 1972), Quoting NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), Cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967), but "considerable weight must be assigned to (the Board's) determinations regarding the existence or nonexistence of substantial and material factual issues." NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1282 (5th Cir. 1979) (citations omitted); See also NLRB v. Savair Manufacturing Co., 414 U.S. 270, 276-81, 94 S.Ct. 495, 498-501, 38 L.Ed.2d 495, 501-04 (1973) (effect of waiving initiation fees only for employees who signed authorization cards before election; Supreme Court majority implicitly reviewed Board's determination under question of law, not abuse of discretion, standard); K. Davis, Administrative Law of the Seventies § 30.00, pp. 689-90 (1976).

To obtain a hearing, the losing party bears a heavy burden. Its affidavits must contain " 'specific evidence of specific events from or about specific people . . .' "; conclusory allegations are not sufficient. NLRB v. Douglas County Electric Membership Corp., 358 F.2d 125, 130 (5th Cir. 1966); See Golden Age, supra, 415 F.2d at 33; U.S. Rubber Co., supra, 373 F.2d at 606. Moreover, an election may be set aside only if the objectionable activity, when considered as a whole, either tended to or did influence the outcome of the election. NLRB v. Gulf States Canners, Inc., 585 F.2d 757, 759 (5th Cir. 1978); Home Town Foods, Inc. v. NLRB, 416 F.2d 392, 397 (5th Cir. 1969). Such a showing is particularly difficult to make where, as here, the union won by a wide margin. NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924 (5th Cir. 1976), Cert. denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977) (156 for-77 against); United Steelworkers of America, supra, 496 F.2d at 1347, 1349 (52 for-26 against). Yet we must consider the possibility that the objectionable conduct itself contributed to the margin of victory. Id. at 1347 n.11.

In determining whether Claxton made out a prima facie case that as a matter of due process would entitle it to a hearing, we confine our analysis to the contents of the affidavits submitted by Claxton to the acting regional director. ² See Home Town Foods, Inc. v. NLRB, 379 F.2d 241, 243 (5th Cir. 1967); U.S. Rubber Co., supra, 373 F.2d at 606. Employers may not rely upon "the Board staff to seek out evidence that would warrant setting aside the election." Id. (citations omitted); See NLRB v. Gooch Packing Co., 457 F.2d 361, 363 (5th Cir. 1972). We discuss in full detail, below, the contents of the affidavits that lead us to find that the employer made a prima facie showing.

We turn then to consider the effect of an investigation made by the regional director when the objector has met his burden of coming forward and thereby has established a right to a hearing. ³ Once the right to a hearing is established, the investigation is not a substitute for it. The hearing may not be denied on the basis of new information obtained ex parte by the regional director. See Gulf Coast, supra, 588 F.2d at 1098-100; Luminator Div., supra, 469 F.2d at 1375; NLRB v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 249 (5th Cir. 1964). Moreover, the regional director must make available relevant information discovered in the course of his investigation, at least to the extent that the employer has pointed him toward it, whether it favors the successful party or the objector and regardless of whether it was referred to by the objector's affidavits or is independently turned up by the investigation. U.S. Rubber Co., supra, 373 F.2d at 606-07.

In Golden Age, the Board found, and this court agreed, that the employer's proffer of proof in support of its objections was "insubstantial" and that neither the affidavits nor the administrative investigation revealed any adverse effect upon the atmosphere necessary to the employees' exercise of a free choice in the election. 415 F.2d at 33. Thus, the court decided first that the events recited in the employer's affidavits did not establish the right to a hearing. It further implied that, even though the employer did not make out a prima facie case, new information turned up in the regional director's investigation could itself have triggered the right to a hearing; in that case, however, no such information was found. This second prong of the Golden Age discussion is consistent with the Regulations; ⁴ See also U.S. Rubber Co., supra, 373 F.2d at 606. We need not base our decision on it, however, because Claxton's affidavits were sufficient to create a right to a hearing.

Arguably, Golden Age can be read to imply in dictum that the Board is entitled to resolve conflicts between the objector's prima facie evidence and evidence discovered in the ex parte investigation. If such an implication is present we do not follow it, because it was unnecessary to the decision and contrary to the plain command of U.S. Rubber and numerous other cases cited in footnote 6 of Golden Age.

With these guidelines in mind, we consider what Claxton presented to the acting regional director and the effect upon that presentation of matter turned up in the ex parte investigation.

I. The contents of the employer's affidavits and the acting

regional director's findings of fact

A. Threats and acts of violence

The employer's affidavits included statements by several employees that anti-union employees were the victims of threats and acts of violence. One anti-union employee (R. 53) stated that she received a telephone call from a stranger identifying herself as Sancha McGowan, "a representative of the union", who told the employee that she was breaking the law and that "they" were contacting Washington and would take her to court. The regional director dismissed this statement on the grounds that the union did not employ any Sancha McGowan and therefore denied knowledge of any such person and that there was no evidence that the union was aware of, ratified or condoned the call. It is obvious that the regional director secured the union denial and disclaimers in the conduct of his ex parte investigation.

Another employee stated that he had seen Raymond Kennedy standing among a large group of employees on company property and passing out union handbills. When asked to leave the premises, Kennedy shouted, "God damn it, if you are going to play dirty then we are going to play dirty too." The employee said that Kennedy was a former Claxton employee who was identified with the in-plant organizing committee (IPOC) and that he heard that Hazel said that when he was out of town the workers should see Kennedy with their problems. (R. 54.) The regional director recited this incident but did not mention that part of the statement referring to Kennedy's connection with the union.

A third employee said that when she was wearing a "Vote No" button in her hair, a union adherent threatened twice to cut the button out of her hair and once to beat up her anti-union friend (R. 55). The...