N.L.R.B. v. Pinkerton's, Inc.

• Decision Date: 27 June 1980
• Docket Number: No. 78-1049,78-1049
• Parties: 104 L.R.R.M. (BNA) 2743, 89 Lab.Cas. P 12,165 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PINKERTON'S, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1322

621 F.2d 1322

104 L.R.R.M. (BNA) 2743, 89 Lab.Cas. P 12,165

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PINKERTON'S, INC., Respondent.

No. 78-1049.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1980.

Decided June 27, 1980.

Elliott Moore, Deputy Associate Gen. Counsel, Jesse I. Etelson, Allison W. Brown, Jr., Washington, D. C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for petitioner.

Timothy D. Wood, Schwarrz, Einhart & Simerka, Edward J. Simerka, Cleveland, Ohio, for respondent.

Before LIVELY, MERRITT and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

The National Labor Relations Board has petitioned for enforcement of its order finding respondent, Pinkerton's, Inc., in violation of §§ 8(a)(5) and 8(a)(1) of the Labor Management Relations Act (29 U.S.C. §§ 158(a)(5), 158(a)(1)) and ordering it to bargain with the union certified by the Board as the employees' elected representative, the United Plant Guard Workers of America. The respondent employer claims it did not have to bargain with the union as the union was not properly certified. The employer asks this Court to set aside the election or, in the alternative, to remand for a hearing.

The employer provides uniformed guards and investigative services for its clients. On May 20, 1976, the union filed a representation petition for the full- and part-time plant guards within the jurisdiction of the employer's Detroit, Michigan branch office. On August 18, 1976, a hearing was conducted on a charge that the union was disqualified for an alleged conflict of interest. August 23, 1976, the Regional Director found the union was qualified and ordered an election. The election was held January 6, 1977 82 votes were cast for the union, 76 against, 7 additional votes were challenged. January 14, 1977, the employer filed objections, submitted affidavits, and requested a hearing. The Regional Director conducted an administrative investigation, overruled the objections, sustained two of the challenges, held the rest of the challenges were not determinative, and certified the union in a supplemental decision dated March 30, 1977. The employer again requested review by the Board, which was denied May 13, 1977. The employer thereafter refused to bargain, still insisting the union was not properly certified. An unfair labor practice charge was filed against the employer for failure to bargain. The Board refused a hearing as any issue concerning the certification could have been raised in the representation proceeding. The Board then granted summary judgment against the employer and ordered the employer to bargain with the union.

Congress has entrusted to the Board considerable discretion in conducting elections and resolving disputes concerning representation. The task for this Court is to determine whether the Board acted arbitrarily in the exercise of its discretion. See NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir. 1974), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974). The Board's findings, if supported by substantial evidence, must be affirmed even though this Court might justifiably reach a different conclusion had it reviewed the case de novo. Conflicting inferences are for the Board to resolve. See 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 180 (6th Cir. 1967); cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). The party objecting to the validity of an election must bear the heavy burden of demonstrating by specific evidence that the election was unfair. See Harlan # 4 Coal Co., supra, 490 F.2d at 120. Since the employer admits it refused to bargain with the union, if the union was properly certified, then the Board's order is supported by substantial evidence. See NLRB v. Wackenhut Corp., 471 F.2d 761, 762 (6th Cir. 1972). For reasons stated below, we find the union was not properly certified. We deny enforcement and remand for an evidentiary hearing.

The employer argues the Board committed several substantive and procedural errors when it certified the union. It claims that the union was disqualified due to a conflict of interest and that the election should be set aside because of false representations by the union and because four employees never received their mail ballots. It argues that the Board should have granted it a hearing on the substantive issues and that the Regional Director should not have quashed a subpoena and excluded testimony at the hearing on the conflict of interest question.

I. Necessity of a Hearing

A hearing is not required in an unfair labor practice proceeding if the issues were or could have been raised during a prior representation hearing unless the objecting party presents new evidence. See 29 C.F.R. § 102.69(d); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941); Tennessee Packers, supra, 379 F.2d at 179-80.

The Board's regulations permit the Regional Director to consider challenges and objections to an election based on an administrative investigation without a hearing if the objections raise no substantial and material factual issues in dispute which more appropriately may be resolved after a hearing. See 29 C.F.R. § 102.69(d). The party seeking a hearing must clearly demonstrate that substantial and material facts are in dispute by making specific allegations and a proffer of proof which prima facie would warrant setting aside the election. See Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1228 (2d Cir., 1974); NLRB v. Modine Manufacturing Co., 500 F.2d 914, 916 (8th Cir. 1974); Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 828 (D.C.Cir.1970); NLRB v. Louisville Chair Co., 385 F.2d 922, 928 (6th Cir. 1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163 (1968); Tennessee Packers, supra, 379 F.2d at 178; NLRB v. O.K. Van Storage, Inc., 297 F.2d 74, 75 (5th Cir. 1961).

The employer in the present case did not present any new evidence at the unfair labor practice proceeding. Thus, this Court must determine whether the employer alleged specific facts in dispute which required a hearing at the representation proceeding or whether the employer merely attacked the conclusions of the Regional Director. We will discuss this issue as we discuss in turn each substantive issue raised by the employer.

II. Alleged Conflict of Interest

The employer alleged that the union was disqualified because of a conflict of interest: one of its employees testified that the union organizer, Mr. Allen, explained he was not trying to organize a subsidiary of the employer's competitor, Guardian Alarm Co., because he had made an agreement not to organize it for six to nine months. The employer attempted to prove at the conflict of interest hearing that in exchange for this, Guardian's supervisors, Mr. Greer and Mr. Tode, former employees of Pinkerton's, gave Mr. Allen names of employees and clients to facilitate the organizing effort.

The president of Guardian and Mr. Allen both denied any agreement between the union and Guardian. They both denied that the union supported Guardian by loans, contributions, or any other method and vice-versa.

The Hearing Officer excluded proffered testimony of a Pinkerton employee, Mr. Maciolek, who would have testified that Mr. Greer arranged a meeting with Greer, Allen, and Maciolek at which Greer offered Maciolek a better-paying job at Guardian and Allen offered to pay Maciolek to encourage employees to support the union. The Hearing Officer felt this testimony related to a showing of interest and claim of unlawful assistance, which had already been litigated in a prior unfair labor practice proceeding and resulted in a decision favorable to the union.

The Hearing Officer also quashed subpoenas duces tecum to the union and the competitor, Guardian, ruling that although the subpoenas related to a financial tie between the union and Guardian, the employer had not demonstrated that such a proprietary interest existed. The Regional Director affirmed. He held the record did not establish any type of relationship between the union and Guardian or that there was any danger the interests of the employees would be subverted and concluded the union was qualified to represent the employees.

Since the Regional Director made no finding about the truth of Mr. Maciolek's statement, we are bound to accept the employer's version. See Argus Optics v. NLRB, 515 F.2d 939, 945 (6th Cir. 1975).

The Board or the Hearing Officer has the power to revoke a subpoena. See Herman Brothers Pet Supply, Inc. v. NLRB, 360 F.2d 176, 177-78 (6th Cir. 1966); NLRB v. National Beverages, Inc., 418 F.2d 206, 208 (5th Cir. 1969). If the party does not demonstrate that the requested material is relevant, the Regional Director may properly quash the subpoena. See NLRB v. Adrian Belt Co., 578 F.2d 1304 (9th Cir. 1978); NLRB v. Bancroft Manufacturing Co., Inc., 516 F.2d 436, 447 (5th Cir. 1975); National Beverages, supra.

The requested documents in the subpoenas concerned cash disbursements or receipts, client bids, personnel records, grievance records, logs of prospective clients, stock ownership, payments to the union, loans and investments by and to the employer. The subpoenas are definitely broad-reaching and relate to a possible proprietary interest of the union in the competitor of the employer. However, even assuming all the proffered evidence is true, the employer did not establish any reason for believing a business relationship existed such that those documents would be relevant. The subpoenas were properly quashed. The exclusion of Maciolek's testimony was also proper. For even if his testimony were true, it would not establish a...