N.L.R.B. v. Aaron Bros. Corp.
| Decision Date | 21 October 1977 |
| Docket Number | No. 76-3442,76-3442 |
| Citation | 563 F.2d 409 |
| Parties | 96 L.R.R.M. (BNA) 3261, 82 Lab.Cas. P 10,213 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AARON BROTHERS CORP., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elliott Moore, Corinna Metcalf, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., Abraham Siegel, Director, Region 31, N.L.R.B., Los Angeles, Cal., for petitioner.
Norman H. Kirshman, Nelson, Kirshman, Goldstein, Gentile & Rexon, Los Angeles, Cal., Brundage, Beeson & Pappy, William J. Smith, Los Angeles, Cal., for Aaron Brothers.
On Petition to Review a Decision of the National Labor Relations Board.
Before KOELSCH and HUFSTEDLER, Circuit Judges, and EAST, * District judge.
The National Labor Relations Board (Board), pursuant to § 10(e) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 88 Stat. 395) (the Act), petitions for enforcement of its order issued on April 30, 1976 (223 NLRB No. 169) holding the respondent Aaron Brothers Corporation (Company) in violation of § 8(a)(5) and (1) of the Act by refusing to bargain with the Union. 1 We enforce the order.
On April 4, 1975, the Board held a consent election in a unit consisting of all warehouse employees and truck drivers at the Company's store at 940 Orange Drive in Los Angeles. The Union won by a vote of 14 to 1, with no ballots challenged.
Thereafter on April 10, 1975, the Company filed five objections to the election. On June 13, 1975, the Regional Director of the Board, after considering the evidence submitted by the Company and conducting an investigation of his own, issued a report on the objections and recommended that the Board overrule all of the Company's objections and certify the Union. The Company then requested a review by the Board as to Objections 1, 2, 3, and 5, asking that the case be remanded for an evidentiary hearing. On September 4, 1975, the Board, after reviewing the Company's exceptions in light of evidence submitted, issued its decision and certification of representative adopting the Regional Director's findings, conclusions, and recommendations and certifying the Union. About September 8, 1975, the Union requested the Company to bargain with it, and on September 17, 1975, the Company refused.
In these proceedings, the Company continues to pursue three of its original objections:
Objections 1 and 2: The Union campaigned within 100 feet of the polling booth and that shouting by employees in the immediate vicinity of the polling area destroyed the required laboratory conditions.
Objection 3: The Union's offer to waive initiation fees for those employees who sign authorization cards before the election constituted an unlawful inducement.
Objections 1 and 2 :
The Company contends that on the strength of its evidentiary showing, the Board erred in rejecting its objections to the election without a hearing. The applicable rule was recently applied by this Court in Alson Mfg. Aero. Div. of Alson Indus., Inc. v. N. L. R. B., 523 F.2d 470, 472 (9th Cir. 1975).
"It is true that in order to obtain a hearing in a post-election representation proceeding, the objecting party must supply prima facie evidence, presenting 'substantial and material factual issues' which would warrant setting aside the election. 29 C.F.R. § 102.69(c). It is also correct that a hearing is unnecessary where if all the facts contended for by the objecting party were credited, no ground is shown which would warrant setting aside the election. N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889, 892 (5th Cir. 1968); N. L. R. B. v. Harrah's Club, 403 F.2d 865, 869 (9th Cir. 1968). 2
We believe the factual picture in Alson is not reflected here and in that respect Alson is inapposite. Following the legal course laid down in Alson, we review the Company's objections in light of the record evidence. On the day of the election, the voting employees entered an assembly area on the Company's premises and then entered one by one into an adjoining room for their actual polling. The only evidence offered by the Company as to the atmosphere in the polling area consisted of two affidavits by Company people to the effect that within the assembly area some unidentified employees shouted to other arriving employees, "Here comes so-and-so, come on, man, let's do it, or words to that effect." The affidavits characterized the noise in the following terms, "loud cat calls," "loud noises," "cheering and shouting (which) would reach a peak and then subside and shortly thereafter resume again," "shouting, cheering and general raucousness," "the noise became so distressing to me (a Company Vice-President), I expressed the desire to look and see what was happening." However, there is no evidence in the record that any employee was in any wise intimidated or influenced by such shouting or commotion in his ultimate vote.
The Board will not set an election aside unless misconduct "constitute(d) an interference with free choice, for or against a bargaining representative . . . ." N. L. R. B. v. Bata Shoe Co., 377 F.2d 821, 829 (4th Cir.), cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967), quoting Anchor Mfg. Co. v. N. L. R. B., 300 F.2d 301, 303 (5th Cir. 1962). Alson dealt with the charge that union agents were the motivating force behind the bad practices. In contrast, here the evidentiary record is devoid of any showing of union participation. We adhere to the Board's policy that "activities of a union's employee adherents which are not attributable to the union itself are entitled to less weight in the variable equation which leads to a conclusion that an election must be set aside." N. L. R. B. v. Monroe Auto Equipment Co., 470 F.2d 1329, 1332 (5th Cir. 1972). Furthermore this Court has recognized that the Board's policy "credits employees with the ability to give true weight to the possibly impulsive allegations of fellow employees induced by the heat of a campaign." N. L. R. B. v. Sauk Valley Mfg. Co., 486 F.2d 1127, 1131, n. 5 (9th Cir. 1973). So to warrant overturning an election, employee conduct must be "coercive and disruptive conduct or other action (which) is so aggravated that a free expression of choice of representation is impossible." (Emphasis added). Monroe Auto Equipment, 470 F.2d at 1332, quoting Bush Hog, Inc. v. N. L. R....
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