N.L.R.B. v. Unifemme, Inc.

• Decision Date: 11 January 1978
• Docket Number: No. 76-2098,76-2098
• Citation: 570 F.2d 230
• Parties: 97 L.R.R.M. (BNA) 2342, 83 Lab.Cas. P 10,297 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNIFEMME, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 230

570 F.2d 230

97 L.R.R.M. (BNA) 2342, 83 Lab.Cas. P 10,297

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNIFEMME, INC., Respondent.

No. 76-2098.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 31, 1977.

Decided Jan. 11, 1978.

Mary Schuette, Atty., N. L. R. B., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, W. Brown, Jr., N. L. R. B., Washington, D. C., on brief, for petitioner.

Michael J. Bobroff, St. Louis, Mo., Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., on brief, for respondent.

Before ROSS, STEPHENSON and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This case is before us on application for enforcement of an order of the National Labor Relations Board (Board). The order found that respondent, Unifemme, Inc., violated § 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., by refusing to bargain with the duly certified representative of Unifemme's employees. The Board's findings were based in part on a prior representation proceeding under § 9 of the National Labor Relations Act.

In May, 1975 Amalgamated Clothing Workers Union (Amalgamated) filed a representation petition with the Board. Following negotiations between Amalgamated and Unifemme, the two parties entered into an election agreement entitled Stipulation for Certification Upon Consent Election. As a result of the negotiations, Unifemme's shipping employees were included as part of the bargaining unit, along with the production and maintenance employees. The election agreement was executed on June 19, 1975.

On June 24, 1975 the Garment Worker's Union (Union) filed a motion to intervene in the election. The motion was granted even though the intervention was opposed by Amalgamated. In its motion in opposition to the motion to intervene, Amalgamated alleged that Union's intervention was both untimely and fraudulent. The Board's procedure permits intervention by a second union in a consent election proceeding only if such union demonstrates a showing of interest (usually a signed authorization card) which predates the approval of the election agreement. Amalgamated, in its motion in opposition to Union's intervention, alleged that five days after an authorization card was rejected because it did not predate the election agreement, another card, signed by the same employee but bearing a date prior to the election agreement, was accepted by the Regional Office. On the basis of this second card the Regional Director granted Union's motion to intervene. The Board neither confirms nor denies the allegation that the same employee signed both cards, but does admit that two cards were filed, and that the first to be filed was untimely and thus rejected. After notice of the intervention by Union was given to Unifemme, Unifemme sought to withdraw from the election agreement. In a letter to the Regional Director dated July 16, 1975, attorneys for Unifemme pointed out that the intervention of Union into the election created serious problems with regard to the bargaining unit issue and that had Unifemme known that Union was to be a party to the election, it would not have signed the election agreement. Unifemme pointed out that § 11098.1d of the Board's Field Manual contemplates situations where the employer may wish to withdraw from an election agreement because of changed circumstances. Further, Unifemme proposed to meet with Union and Amalgamated for the purpose of attempting to enter into an election agreement with both unions, after bargaining unit issues had been resolved. ¹ Unifemme's request to withdraw from the election was received by the Regional Director on July 18, 1975. On the same day the request was denied by the Director who wrote in part: "After careful review of this matter, I conclude that no good cause has been shown why I should withdraw my approval of the election agreement."

Less than twenty-four hours prior to the election Union representatives made statements to some of Unifemme's employees concerning the wages of Union members at Nelly Don, a nearby plant. While the statements were not completely substantiated by the records of Nelly Don, the Regional Director found that any departures from the truth were merely exaggerations that are expected and tolerated in any election.

The election was held on August 1, 1975, and Union received a majority of the votes. Unifemme formally objected to the conduct of the election in a petition filed with the Board on August 5, 1975. In its petition Unifemme alleged that Union should not have been allowed to intervene, that the Board's refusal to grant Unifemme's request to withdraw from the election agreement was improper, and that the election was invalid due to substantial misrepresentations made by Union concerning wages and benefits of Union workers at a nearby plant, less than twenty-four hours prior to the election. In March, 1976, without a hearing, the Board adopted the Regional Director's finding that Unifemme's objections to the election should be overruled, and certified Union as the exclusive bargaining representative of Unifemme's employees.

In April, 1976 Unifemme rejected Union's request to bargain, and Union filed an unfair labor practice charge. Unifemme, in response to a complaint, admitted that it had refused to bargain but denied the validity of the Board's certification of Union. In response to a notice to show cause why summary judgment should not be granted, Unifemme relied on its position challenging the validity of the election and the resulting certification of Union as bargaining representative.

In October, 1976 the Board found Unifemme to be in violation of § 8(a)(5) and (1), noting that all of the issues raised by Unifemme in the unfair labor practice proceeding were, or could have been, litigated in the representation proceeding, and that Unifemme did not offer any new evidence to require reexamination of the certification of Union as the bargaining representative of Unifemme's employees. The Board issued an order requiring that Unifemme bargain with Union and post appropriate notices. At no time was Unifemme given a hearing on the factual issues before either the Regional Director or the Board.

Before us, Unifemme asserts four grounds in support of its refusal to bargain with Union. First, Unifemme argues that the Regional Director abused his discretion by permitting Union to intervene in the election. Second, Unifemme argues that the Regional Director abused his discretion by refusing to permit Unifemme to withdraw from the election agreement after intervention by Union. Third, Unifemme argues that the Board's certification of Union as the bargaining representative is invalid because of Union misrepresentations concerning wages and benefits made less than twenty-four hours prior to the election and because of the Board's failure to direct that a hearing be held concerning the misrepresentations. Fourth, Unifemme argues that the Board improperly refused to reexamine the representation issue during the unfair labor practice proceeding.

Since we find that the Regional Director abused his discretion by refusing...