N.L.R.B. v. RJR Archer Inc., Filmco Div., 77-1540
| Decision Date | 14 March 1980 |
| Docket Number | No. 77-1540,77-1540 |
| Parties | 104 L.R.R.M. (BNA) 3143, 89 Lab.Cas. P 12,201 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RJR ARCHER INC., Filmco Division, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Norman Moscowitz, Deputy Associate General Counsel, Peter Bernstein, Robert Sewell, N. L. R. B., Washington, D. C., Bernard Levine, Director, Region 8, N.L.R.B., Cleveland, Ohio, for petitioner.
Leslie R. Stellman, Earle K. Shawe, William J. Rosenthal, Shawe & Rosenthal, Baltimore, Md., for respondent.
Before KEITH and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Petitioner, National Labor Relations Board (the "Board") seeks enforcement of its Order 1 finding that RJR Archer's, Inc., (the "Company") failure to honor the Board's Certification of the Freight Drivers, Dockworkers, and Helpers Local Union No. 24 (the "Union") violated Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C., Section 151 et seq. (the "Act").
We remand the case to the Board with instructions to hold an evidentiary hearing into the Company's allegations of Union misconduct during a representation election.
A representation election was conducted on May 6, 1976 among the Company's employees. Sixty-nine votes were cast in favor of the Union, while sixty-six employees voted against union representation.
On May 13, 1976, the Company filed timely Objections (the "Objections") to Union conduct allegedly affecting the election results. In its Objections the Company alleged generally that the Union had threatened employees with retaliation if they did not vote for the Union, that the Union had misrepresented the wages and benefits which it had obtained for employees at another company; and that the Union had defaced an official sample ballot by placing an "X" in the box marked "yes." In support thereof, the Company submitted a number of affidavits of supervisory employees who recited the facts underlying each of the Objections to Union conduct during the representation election.
An administrative investigation of the Company's Objections was conducted by the Board's Regional Director in which the parties had full opportunity to submit evidence and present witnesses. The Regional Director in its Report on Objections (the "Report") recommended the certification of the Union. The Company filed exceptions (the "Exceptions") to the Report which are nearly identical to its original Objections.
The Board, after full consideration of the Company's Objections, the Report and Exceptions to such, and the "entire record" adopted the recommendation of the Regional Director and certified the Union. The Board did not order the Regional Director to hold an evidentiary hearing on the alleged Union misconduct.
Subsequently, the Company refused to bargain with the Union. The Board ultimately found the Company's refusal to bargain constituted an unfair labor practice in violation of § 8(a)(5) and (1) (the "Charges") of the Act. The Board petitions this Court for enforcement of its Order that the Company cease and desist from violating the Act and bargain with the Union.
The Company defended itself against the Charges by attacking the Board's decision to certify the Union. Specifically, the Company argues that the Board's certification decision, arrived at without benefit of either an evidentiary hearing on the Company's Exceptions or a review of its affidavits in support of allegations of union misconduct, constitutes an "abuse of discretion." The Board argues that it has discretion to certify a union without ordering the Regional Director to hold an evidentiary hearing. It argues that such decision in this case was justified by the Company's failure to state with particularity the factual errors of the Regional Director's Report on alleged Union misconduct.
We hold that the issues presented to the...
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