N.L.R.B. v. Van Gorp Corp.

• Decision Date: 15 February 1980
• Docket Number: No. 79-1351,79-1351
• Citation: 615 F.2d 759
• Parties: 103 L.R.R.M. (BNA) 2766, 88 Lab.Cas. P 11,840 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VAN GORP CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 759

615 F.2d 759

103 L.R.R.M. (BNA) 2766, 88 Lab.Cas. P 11,840

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VAN GORP CORPORATION, Respondent.

No. 79-1351.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 7, 1979.

Decided Feb. 15, 1980.

Helen Morgan, Atty., N. L. R. B., Washington, D. C. (argued), William F. Wachter, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief, for petitioner.

Thomas O. McCarthy, McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, St. Louis, Mo. (argued), Thomas M. Hanna, St. Louis, Mo., on brief, for respondent.

Before LAY, Chief Judge, ^* BRIGHT and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The National Labor Relations Board (hereinafter the Board) petitions for enforcement of its order requiring respondent In a representation election conducted by the Board on October 21, 1977, the Union was selected by a majority of certain production workers at Van Gorp as their bargaining representative. The vote was 51 to 46 with no challenged ballots. Van Gorp made timely objections to the Board over conduct of the election. A Board hearing officer, after conducting a hearing on the objections, recommended on February 3, 1978, that the Board overrule all the objections and certify the Union as bargaining representative for an appropriate unit. On March 6, 1978, the Board's regional director issued a decision accepting the recommendations of the hearing officer and rejecting Van Gorp's exceptions. In May, 1978, the Board, suggesting that Van Gorp had not raised any substantial issues, declined to review this decision.

Van Gorp Corporation (hereinafter Van Gorp) to bargain with the United Automobile, Aerospace and Agricultural Implement Workers, International Union, UAW (hereinafter the Union), as the exclusive bargaining representative for certain of its employees. For the reasons stated below, we deny the petition for enforcement.

Van Gorp, however, continued to object to the certification of the Union, and therefore refused to bargain with the Union as representative of its employees. On June 22, 1978, the Union filed a charge of unfair labor practice, and on February 7, 1979, the Board issued the bargaining order now before us. Van Gorp Corporation, 240 N.L.R.B. No. 86 (1979).

Only by refusing to bargain could Van Gorp obtain judicial review of the Board's decision certifying the Union as the bargaining agent for Van Gorp's workers. See LaCrescent Constant Care Center, Inc. v. NLRB, 510 F.2d 1319, 1321, n.6 (8th Cir. 1975). The National Labor Relations Act, 29 U.S.C. § 151 et seq., does not, in general, provide for judicial review of Board representation proceedings until, on the basis of the certification, the Board has entered a bargaining order or other compulsory order against the challenging party. ¹ Under § 9(d) of the Act, 29 U.S.C. § 159(d), once a Board order comes before this court for review, the certification proceedings underlying the order may also be brought before the court for review. See Boire v. Greyhound, Inc., supra, 376 U.S. at 477, 84 S.Ct. at 896. In reviewing the certification proceedings underlying the Board's order for the employer to bargain with the certified Union, we apply the rule of § 10(e) of the Act, 29 U.S.C. § 160(e), that the Board's findings are to be upheld if supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Gulf Coast Automotive Warehouse Co. v. NLRB, 588 F.2d 1096 (5th Cir. 1979). The certification proceedings may be reviewed substantively along with the bargaining order. In this case the Board, while considering the unfair labor practice charge, reopened and reaffirmed its earlier certification of the Union. Van Gorp Corporation, supra, 240 N.L.R.B. No. 86 (slip opinion at 5 n.2). ²

Challenging the certification of the Union, Van Gorp argues that last minute misrepresentations by the Union compel setting aside the October 21, 1977, election. ³ In addition, Van Gorp contends that the election was tainted by coercive conduct of employees who were Union supporters. We think that, considering the record as a whole, there was not substantial evidence to support the Board's conclusion that the election result expressed a free and fair choice of bargaining representative by the Van Gorp work force.

I.

The standard for determining if an election should be set aside on the basis of a misrepresentation was set forth by the Board in Hollywood Ceramics Co., 140 N.L.R.B. 221, 224 (1962):

We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.

This standard has been reaffirmed by the Board in General Knit of California, Inc., 239 N.L.R.B. No. 101 (1978), and it is the standard applied by this court. See, e. g., LaCrescent Constant Care Center, Inc. v. NLRB, supra, 510 F.2d at 1321-22 (8th Cir. 1975); NLRB v. Lord Baltimore Press, Inc., 370 F.2d 397, 402 (8th Cir. 1966). The Hollywood Ceramics standard includes consideration of such factors as whether there has been a misrepresentation of facts important in the election campaign, whether the party making the misrepresentation was in a position to have authoritative knowledge on the subject of the misrepresentation, whether the workers addressed had independent knowledge that would enable them to evaluate the misrepresentation and whether opposing parties had some opportunity to make an effective rebuttal. See NLRB v. Allis-Chalmers Corp., 601 F.2d 870, 872 n.3 (5th Cir. 1979).

The most serious misrepresentation in this case involved a contract between the Union and Emerson Electric Company (hereinafter Emerson), which owned Van Gorp. The contract covered Emerson's Pittsburgh, Pennsylvania, plant known as the Wiegand plant. There was undisputed testimony before the Board that the Wiegand contract provided a cost of living adjustment (COLA) allowing a maximum of twelve cents pay increase each year for the three-year duration of the contract. However, on its face the wording of the Wiegand contract is confusing and ambiguous. See appendix. A Union official, taking advantage of the difficulty a lay person would have in understanding the contract, repeatedly attempted to convince workers that the Wiegand COLA was a maximum of twelve cents per quarter, rather than twelve cents per year.

Union representatives persisted in this misrepresentation in such a way that effective rebuttal would have been nearly impossible. Company officials repeatedly told workers that the Wiegand COLA was limited to a maximum of twelve cents per year. The day before the election at a mandatory meeting of all workers in the prospective bargaining unit, Van Gorp's vice president for labor relations offered a $500 reward to anyone who could prove false Van Gorp's assertion that the Wiegand COLA had a twelve cent annual maximum. That night at a voluntary Union meeting for members of the prospective bargaining unit, a Union representative replied that on the basis of the wording of the Wiegand contract itself, he could collect the $500 reward. He gave Union supporters copies of the contract to use in demonstrating to other workers that The Board contends in this court that no misrepresentation of the Wiegand contract was made by Union officials. But, it is not at all clear that the Board made any such finding in its decision on the refusal to bargain. When Van Gorp objected on the basis of the Wiegand COLA misrepresentation to the certification of the Union, the Board's hearing officer recommended that the objection be rejected for two reasons: because he found no substantial departure from the truth and because he found that the employer had sufficient opportunity to respond to the alleged misrepresentation. The hearing officer's recommendation was adopted without further comment by the Board in certifying the Union as bargaining representative. In the proceedings involving Van Gorp's subsequent refusal to bargain, however, the Board reevaluated Van Gorp's objection concerning this misrepresentation and summarily declared the objection meritless without any hint whether this conclusion was based on a finding that the representation was true, or a finding that Van Gorp had sufficient opportunity to respond, or some other finding, e. g., that the misrepresentation was not important enough to warrant overturning the election. Van Gorp Corporation, supra, 240 N.L.R.B. No. 86 (slip opinion at 5 n.2).

the Wiegand maximum was twelve cents per quarter, not twelve cents per year. By using the confusing contract language in this way, the Union created a last minute misrepresentation that could not be effectively rebutted by Van Gorp.

Assuming the Board, indeed, found that the Union official did not misrepresent the Wiegand contract by claiming it allowed twelve cents per quarter COLA, the Board's finding is not supported by substantial evidence. The record before the Board contained undisputed testimony that in fact the Wiegand contract provided only a twelve cent per year COLA. The Union was a party to the Wiegand contract and in a position to have authoritative knowledge about how much the COLA actually was under that contract. Yet in the subsequent proceedings before the Board, the Union presented no evidence to refute Van Gorp's position that the COLA was only twelve cents annually.

The only support offered by the Board for a finding of no misrepresentation is that the Wiegand contract on its face is...