N.L.R.B. v. Yellow Transp. Co., a Div. of Yellow Cab Co-op., Inc.

Citation709 F.2d 1342
Decision Date08 July 1983
Docket NumberNo. 82-7021,82-7021
Parties114 L.R.R.M. (BNA) 2466, 98 Lab.Cas. P 10,287 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YELLOW TRANSPORTATION COMPANY, A DIVISION OF YELLOW CAB COOPERATIVE, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Assoc. Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D.C., for petitioner.

James J. Meyers, Jr., Berman, Cassel & Carter, San Francisco, Cal., for respondent.

Petition for Enforcement of an Order of the National Labor Relations Board.

Before GOODWIN, KENNEDY and ALARCON, Circuit Judges.

PER CURIAM.

The National Labor Relations Board petitions for enforcement of its order to the Yellow Transportation Company (Yellow Cab) to bargain in good faith with the Independent Cab Drivers Association (the Drivers). The National Labor Relations Board certified an election in which Yellow Cab drivers voted to make the Drivers their collective bargaining representative.

Yellow Cab contends that the Drivers made misrepresentations in printed leaflets circulated during the campaign. Yellow Cab countered Drivers' leaflets with its own leaflets and posted notices. The National Labor Relations Board did not hold a full scale evidentiary hearing concerning the misrepresentations because it concluded that under the law governing elections, Yellow Cab had not made out even a prima facie case of misrepresentations that would require setting aside the election.

The National Labor Relations Board's findings of fact must be upheld if they are supported by "substantial evidence" and its legal conclusions affirmed unless they are "arbitrary and capricious." N.L.R.B. v. International Ass'n of Bridge, Etc., 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977). An evidentiary hearing regarding electoral conduct is required only where the party objecting to the election presents "evidence sufficient to make a prima facie showing as to the alleged facts, which if true, would require a new election." Alson Mfg. Aero. Div. of Alson Indus., Inc. v. N.L.R.B., 523 F.2d 470, 472 (9th Cir.1975).

At the time Yellow Cab objected to the election, the law governing the case was stated in Hollywood Ceramics Company, Inc., 140 N.L.R.B. 221 (1962). Under that rule an election would be set aside for misrepresentation only where a party's misrepresentation involved a substantial departure from the truth and was made at a time when the other party could not make an effective reply. Id. at 224. Yellow Cab, by its own admission, had plenty of time to reply to the Drivers' alleged misrepresentations, and Yellow Cab in fact did so. The test is not whether Yellow Cab's reply was effective. It is whether Yellow Cab had time to reply. The National Labor Relations Board adopted its Acting Regional Director's recommendation, and found that Yellow Cab had failed to present evidence which could require a new election. This finding was supported by substantial evidence.

After the National Labor Relations Board's certification of the Drivers, the Board has adopted an even more stringent test for setting aside elections. Midland...

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11 cases
  • Chamber of Commerce of U.S. v. Lockyer
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 6 Septiembre 2005
    ...campaign statements, and that we will not set elections aside on the basis of misleading campaign statements."); NLRB v. Yellow Transp. Co., 709 F.2d 1342, 1343 (9th Cir.1983) (recognizing Midland). We have consistently emphasized the importance of an employer's freedom of speech in labor r......
  • N.L.R.B. v. Best Products Co., Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 10 Julio 1985
    ...Board's explicit retroactivity decision. This court has applied Midland in one per curiam decision. See N.L.R.B. v. Yellow Transportation Company, 709 F.2d 1342, 1343 (9th Cir.1983). The court implicitly approved both the Midland doctrine and its retroactivity. Other circuits have been expl......
  • Hickman Harbor Service, a Div. of Flowers Transp. Co. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 16 Julio 1984
    ...Midland Life should be applied retroactively); NLRB v. Monark Boat Co., 713 F.2d 355, 361 (8th Cir.1983); NLRB v. Yellow Transportation Co., 709 F.2d 1342 (9th Cir.1983) (per curiam ); N.L.R.B. v. Milwaukee Brush Mfg. Co., 705 F.2d 257 (7th Cir.1983) (per curiam ); NLRB v. Rolligon Corp., 7......
  • Trencor, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Abril 1997
    ...Printing Ctr., Inc., 721 F.2d 886, 892 (2d Cir.1983); NLRB v. Monark Boat Co., 713 F.2d 355, 360 (8th Cir.1983); NLRB v. Yellow Transp. Co., 709 F.2d 1342 (9th Cir.1983). However, two other circuits, while approving the Board's decision in a particular case, held that an election might be o......
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