N.L.R.B. v. Masonic Homes of California, Inc.
| Decision Date | 25 July 1980 |
| Docket Number | No. 79-7377,79-7377 |
| Citation | 624 F.2d 88 |
| Parties | 105 L.R.R.M. (BNA) 2041, 89 Lab.Cas. P 12,168 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASONIC HOMES OF CALIFORNIA, INC., Respondent, Hospital and Institutional Workers Union, Local 250, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Rosenfeld, San Francisco, Cal., argued for intervenor.
George J. Tichy, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent.
On Petition for Review of an Order of the National Labor Relations Board.
Before WRIGHT, KENNEDY and HUG, Circuit Judges.
The Board seeks to enforce its order finding that Masonic violated 29 U.S.C. § 158(a)(5) and (1) by refusing to bargain with Local 250 (the Union). Masonic contends that its refusal to bargain was not an unfair practice because the Board improperly certified the Union without hearing Masonic's objections to the representation election. Masonic has shown facts raising material questions as to the validity of the election results. We deny enforcement and remand for an evidentiary hearing.
The employees of Masonic, a nursing home, voted in a representation election. Masonic filed objections but the Regional Director investigated and recommended that all be overruled. The Board adopted those findings and conclusions without a hearing and certified the Union. Masonic refused to bargain and was found in violation of the act.
The Board has wide discretion in conducting and supervising representation elections. Certification of a union without hearing objections to the election may be disturbed only for abuse of that discretion. NLRB v. Miramar of California, Inc., 601 F.2d 422, 425 (9th Cir. 1979). To get a hearing on post-election objections a party must make a prima facie showing of facts that present "substantial and material factual issues" which, if true, would constitute sufficient grounds to set aside the election. Valley Rock Products, Inc. v. NLRB, 590 F.2d 300, 302 (9th Cir. 1979).
Masonic contends that the Union improperly offered to waive union initiation fees. A union may not offer to waive the initiation fee only of those employees who sign recognition slips before a representation election. NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). Because such inducement creates a false image of employee support and impairs the right to a fair election of those employees who may oppose unionization, setting aside the results may be justified. Id, at 278, 279-80, 94 S.Ct. at 499, 500-501.
Even where a fee waiver offer is not explicit as to time limitations, if "a responsible interpretation of the offer is contrary to the requirements of Savair, then the election should be set aside." NLRB v. Aladdin Hotel Corp., 584 F.2d 891, 893 (9th Cir. 1978).
Employee Izquierdo's affidavit said that a Union representative "told me to sign the (authorization) card right away because if I did I would not have to pay any initiation fee." This is prima facie proof of an illegal fee waiver offer. A responsible interpretation is that if Izquierdo waited until after the election she would have to pay an initiation fee. Masonic should have an evidentiary hearing on the issue.
An election must be set aside if campaign misconduct was so aggravated that a free expression of choice by employees was impossible. NLRB v. Aaron Brothers Corp., 563 F.2d 409, 412 (9th Cir. 1977). The Board will invalidate an election on the basis of inaccurate campaign propaganda
only where there has been a misrepresentation or similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.
Hollywood Ceramics Co., 140 N.L.R.B. 221, 224 (1962); General Knit of California, Inc., 239 N.L.R.B. No. 101 (1978).
Masonic contends that the Union stated falsely that it is almost impossible for health care employees to have a legal strike and accused Masonic falsely of committing an unfair labor practice by questioning employees about their union sympathies. Both statements were misrepresentations. 1
The statement concerning strikes was distributed only two days before the election.
The combined impact of the misrepresentations may have been sufficient to taint the entire election. Cf. NLRB v. Winchell Processing Corp., 451 F.2d 306, 308-10 (9th Cir. 1971) (). The Board should determine whether the alleged misrepresentations had a significant impact.
Masonic says that the Union and its supporters created an atmosphere of fear that prevented a free expression of choice. Where the Board has rejected challenges to campaign activity, a party on appeal "carries a heavy burden in charging that . . . coercion prevented a fair election." Oshman's Sporting Goods, Inc. v. NLRB, 586 F.2d 699, 702 (9th Cir. 1978) (quoting NLRB v. Sauk Valley Manufacturing Co., 486 F.2d 1127, 1130 (9th Cir. 1973). The issue is whether the coercive conduct so influenced potential voters that a free choice by employees was impossible. NLRB v. Miramar of California, Inc., 601 F.2d 422, 424 (9th Cir. 1979).
One employee testified that the Union harassed her with telephone calls and one adherent prevented her from closing her front door when soliciting her vote. Several others expressed fear of reprisals from the Union but none of these fears was attributed to actions or statements by the Union. 2 Affidavits by company attorneys said that other employees had refused to give statements for fear of the Union. The Board should determine whether such coercive conduct made impossible a free expression of choice.
Masonic contends that Union observers improperly maintained a list of voters in the voting area while balloting was taking place. The Board has said that lists of voters are prohibited in that area. See Piggly Wiggly, # 011 and # 228 Eagle Food Centers, Inc., 168 N.L.R.B. 792 (1967). It has refused to set aside an election, however, where the violation has been de...
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