N.L.R.B. v. Belcor, Inc.
| Decision Date | 07 August 1981 |
| Docket Number | AFL-CI,I,No. 80-7369,80-7369 |
| Citation | 652 F.2d 856 |
| Parties | 108 L.R.R.M. (BNA) 2244, 92 Lab.Cas. P 12,959 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hospital and Institutional Workers Union, Local 250, Service Employees International Union,ntervenor, v. BELCOR, INC. d/b/a San Jose Care & Guidance Center, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Susan L. Dolin, Atty., N.L.R.B., Washington, D. C., for petitioner.
David S. Durham, Littler, Mendelson, Fastiff, San Francisco, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before TRASK and BOOCHEVER, Circuit Judges, and CURTIS, * District Judge.
The National Labor Relations Board has petitioned for enforcement of its order that Belcor, Inc. bargain with Hospital and Institutional Workers Union, Local 250, the certified collective bargaining agent. The Board's decision and order is reported at 248 N.L.R.B. 153 (1980). The principal question concerns the propriety of the conduct of a union representation election. Belcor has also raised an issue regarding the Board's failure to require submission of the evidence relied upon by the regional director in rejecting objections to the conduct of the election. We find that, in the absence of submission of evidence by the regional director two issues require a hearing. Thus, the Board's petition for enforcement is denied and the case is remanded for further proceedings.
The employer, Belcor, Inc., operates a mental health care facility in San Jose, California. Local 250 represents hospital service workers. On May 30, 1979, the union and Belcor signed a stipulation for certification upon consent election. 1 The Board's regional representative conducted an election on July 6, 1979. Of 50 employees eligible to vote, 32 voted for the union, 7 against, 7 ballots were challenged and 4 employees did not vote. The challenged ballots were too small in number to affect the outcome of the election.
On July 13, 1979, Belcor filed a number of objections relating to the conduct of the election. To substantiate its claims, the company filed documentary evidence and seven affidavits.
On August 17, after an ex parte investigation, the regional director issued a report in which he recommended that the Board overrule the company's objections. As required by 29 C.F.R. § 102.69(c), the company then filed with the Board a brief and its exceptions to the regional director's report. On November 20, in an unreported decision, the Board denied the company's exceptions, adopted the regional director's report, and certified Local 250 as the employees' exclusive collective bargaining representative.
In order to obtain judicial review of the election certification, the company refused to bargain with the union. The regional director issued a complaint charging the company with an unfair labor practice under § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). The company admitted its refusal to bargain and again raised its objections to the conduct of the election. The case was transferred to the Board, the Board issued a motion to show cause why the general counsel's motion for summary judgment should not be granted, and the company again raised its objections to the underlying election. In its decision and order of April 17, 1980, the Board refused to reconsider the issues raised in the representation proceeding and ordered the company to bargain with the union. The Board now seeks enforcement of that order. 2
In transmitting the election report to the Board, the regional director neither sent the underlying documentation gathered during the region's ex parte investigation, nor submitted any of Belcor's affidavits and other documentation. When the company filed its exceptions with the Board, however, it also filed all the documents that it had given the regional director. Therefore, when the Board issued its decision certifying the election, it had before it the regional director's report, the company's exceptions, and the evidence the company had gathered to rebut the regional director's report. This material is contained in the appellate record. Therefore, any error of the regional director in failing to transmit Belcor's evidence to the Board is harmless.
The company now argues, however, that without the evidence gathered to prepare the regional director's report, the Board was unable to ascertain whether the regional director's report was supportable, and therefore the Board could not overrule the company's exceptions. This argument misses the point.
If no objections are filed, the regional director will certify an election. 29 C.F.R. § 102.69(b). If a party does file objections, the regional director must determine whether the objections are serious enough to warrant setting the election aside. The determination may be made either on the basis of an administrative investigation, or if "substantial and material" factual disputes exist, on the basis of a hearing. 29 C.F.R. § 102.69(d). In a case where no hearing is conducted, the Board will review the regional director's report and the exceptions filed to it. If it appears that no substantial factual disputes exist, the Board will decide the legal issues presented. On the other hand, if the Board finds that there are factual disputes, the case will be remanded back to the region for a hearing. 29 C.F.R. § 102.69(f). A party contesting factual findings cannot simply state a disagreement with the regional director's report. Objections must be specific and they must be supported "by offers of proof in support of findings to the contrary." N.L.R.B. v. Kenny, 488 F.2d 774, 775 (9th Cir. 1974). Furthermore, "the Board is entitled to rely on the report of the Regional Director in the absence of specific assertions of error." Id. at 776 (quoting N.L.R.B. v. Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).
If there is a dispute between the facts as presented in the regional director's report and the facts as presented in the exceptions, the dispute must be resolved through a hearing. Factual disputes cannot be resolved on the basis of the regional director's ex parte investigation. N.L.R.B. v. Claxton Manufacturing Co., 613 F.2d 1364, 1366-67 (5th Cir.), modified on other grounds, 618 F.2d 396 (5th Cir. 1980).
In N.L.R.B. v. North Electric Co., Plant No. 10, 644 F.2d 580, 584 (6th Cir. 1981), the Sixth Circuit discussed the appropriate appellate procedures to follow where the Board adopts the director's recommendation without the benefit of the evidence before the director. In substance, we agree with these procedures to determine whether the Board abused its discretion in denying a hearing.
Where the Board certifies the union without the benefit of either a hearing or the full record, we will construe the "well pleaded factual assertions ... most favorably to (the excepting party)." Prestolite Wire Division v. N.L.R.B., 592 F.2d 302, 307 (6th Cir. 1979). See also Reichart Furniture Co. v. N.L.R.B., 649 F.2d 397 (6th Cir. 1981). If these factual assertions create a material issue of fact, we will remand to the Board to order a hearing. If not, we will affirm the Board's decision. In this case the only question to be resolved is whether the factual issues raised by Belcor are so substantial and material that the Board should have ordered a hearing. 3
Belcor's burden to set aside the election is a heavy one, N.L.R.B. v. Sauk Valley Manufacturing Co., Inc., 486 F.2d 1127, 1130 (9th Cir. 1973), particularly where, as here, there has been such an overwhelming vote in favor of the union. N.L.R.B. v. Claxton Manufacturing Co., Inc., 613 F.2d 1364, 1366 (5th Cir.), modified on other grounds, 618 F.2d 396 (5th Cir. 1980). Nevertheless, applying the principles we have set forth above, two issues require further evidentiary hearing.
In N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), the Court held that a union could not promise waivers of initiation fees for those who signed union recognition slips before an election. The Court concluded that allowing the union to buy endorsements "paints a false portrait of employee support during (its) election campaign." 414 U.S. at 277, 94 S.Ct. at 499.
The company has introduced employee affidavits which state that Rick McGiffen, an employee active in the drive to unionize the health care facility, promised the affiants fee waivers if they would sign recognition slips prior to the election. According to the evidence, eight employees may have signed recognition slips to avoid paying initiation fees.
The Board counters this evidence with two arguments. First it maintains that in a letter to hospital employees and at two pre-election meetings, the union clearly explained its policy of collecting fees. This policy did not include fee waivers of the type condemned by Savair. The director's report states that "there can be no basis for concluding that any employee was in doubt or misled as to the (union's actual policy)." (emphasis added). This contention is not supportable in view of the employee affidavits stating that they signed recognition slips to avoid paying fees.
Second, the Board maintains that McGiffen's illegal offers cannot be attributed to the union. Misconduct which is caused by union adherents rather than by the union itself must be more serious to justify setting an election aside. N.L.R.B. v. Aaron Bros. Corp., 563 F.2d 409, 412 (9th Cir. 1977).
The undisputed evidence in this case is that McGiffen was active in the union campaign, served as an election observer, solicited union recognition slips, and distributed "local 250" writing...
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