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

• Citation: 928 F.2d 194
• Decision Date: 15 March 1991
• Docket Number: No. 90-5205,90-5205
• Parties: 136 L.R.R.M. (BNA) 2761, 118 Lab.Cas. P 10,632 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHRADER'S, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 194

928 F.2d 194

136 L.R.R.M. (BNA) 2761, 118 Lab.Cas. P 10,632

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

No. 90-5205.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 5, 1990.

Decided March 15, 1991.

Aileen A. Armstrong, Deputy Associate General Counsel, Paul J. Spielberg, Karen L. Arndt (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., Emil C. Farkas, Regional Director, N.L.R.B., Region 9, Cincinnati, Ohio, for petitioner.

Brett L. Thurman (argued), Fred A. Ungerman, Jr., Kathleen M. Whalen, Coolidge, Wall, Womsley & Lombard, Dayton, Ohio, for respondent.

Before NELSON and NORRIS, Circuit Judges; and HIGGINS, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

The National Labor Relations Board petitions this court pursuant to 29 U.S.C. Sec. 160(e) for enforcement of its order requiring Shrader's, Inc., to bargain. The NLRB ruled that the company violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (5), by refusing to bargain with the United Automobile, Aerospace & Agricultural Implement Workers of America, the elected and certified bargaining representative of the company's production and maintenance employees. The company attacks the validity of the certification and contends that it was entitled to an evidentiary hearing on its objections to the representation election.

Shrader's is in the business of retreading and repairing tires in Greenville, Ohio. On May 11, 1988, the union filed a representation petition with the NLRB seeking certification as the bargaining representative for the company's production and maintenance employees. The petition was granted and, in a representation election held on July 8, the union prevailed. Of the sixty-three ballots cast, thirty-four were for the union, twenty-eight were against the union, and one vote was challenged.

The company filed timely objections to the election claiming that union supporters engaged in improper electioneering by distributing at the plant before, between, and during voting periods, hats and T-shirts with union insignias. ¹ The regional director of the NLRB investigated the objections and recommended they be overruled without an evidentiary hearing.

The company's employees worked three different shifts--7:00 a.m. to 3:00 p.m.; 3:00 p.m. to 11:00 p.m.; and 11:00 p.m. to 7:00 a.m. The polls were open on election day for two sessions--the first from 6:45 a.m. to 7:30 a.m., and the second from 11:30 a.m. to 3:30 p.m. In this manner, employees working all three shifts--starting with the late shift which began the day before--could vote in the special area designated within the plant. On the morning of election day, Rick Forney, an employee who supported the union, picked up ten T-shirts and ten hats from a union representative for distribution to workers. Forney took the apparel to work with him at 2:30 p.m. and proceeded to a picnic table near the plant entrance where he distributed them to company employees.

The four affidavits proffered by the company in support of its objections were from three employees who voted in the election and a supervisor. The first affiant declared that he had heard, second-hand, that hats and T-shirts were distributed during voting periods; the second affiant stated that he saw another employee, who appeared to be Rick Forney, handing out hats and T-shirts at a picnic table located near the plant's entrance at 2:45 p.m. on election day; the third, a supervisor, said he witnessed Forney, who had been an active union supporter during the weeks prior to the election, distribute hats and T-shirts at the picnic table at 2:40 p.m., and that all employees coming into work would have passed by or near Forney; and the fourth stated that he worked the shift which began at 11:00 p.m. and saw Bill Norvell, who was widely known by Shrader's workers to be a union supporter, distributing the hats during that shift, and that employees "who did not have hats at the beginning of the 11:00 p.m. shift were wearing them immediately before and during the election period which began during the workshift," and that the distribution "was unfairly coercive, and gave the appearance union supporters would be rewarded."

The regional director concluded that the company's objections did not raise substantial or material issues of fact with respect to the validity of the election, and that, as a consequence, an evidentiary hearing was not necessary. He recommended that the objections be overruled and that the union be certified as the exclusive bargaining agent. The NLRB adopted the regional director's recommendation and certified the union.

On December 22, 1988, the union filed unfair labor practices charges against the company alleging that it failed and refused to bargain collectively, in violation of the NLRA. The company admitted that it refused to bargain, but attacked the validity of the certification. The general counsel of the NLRB issued a complaint against the company and, on February 15, 1989, moved for summary judgment which was granted by a three-member panel of the NLRB. The Board ordered the company to cease and desist from refusing to bargain with the union and to furnish information relevant to performance of the union's function as exclusive collective bargaining representative. On February 2, 1990, the NLRB made application to this court for enforcement of its order pursuant to 29 U.S.C. Sec. 160(e).

The NLRB has broad discretion in establishing and administering representation election rules, NLRB v. Hyatt Hotels, Inc., 887 F.2d 109, 111 (6th Cir.1989), and in resolving representation disputes, NLRB v. Basic Wire Prods., Inc., 516 F.2d 261, 263 (6th Cir.1975). Therefore, in reviewing NLRB decisions, the scope of the court's review centers around ascertaining whether the NLRB abused the discretion entrusted to it by Congress to resolve fairly any disputes arising out of representation elections. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327-28, 91 L.Ed. 322; NLRB v. Kilgore Corp., 510 F.2d 1165, 1167 (6th Cir.1975). Findings of fact by the NLRB are conclusive "if supported by substantial evidence on the record considered as a whole." NLRA Sec. 10(e), 29 U.S.C. Sec. 160(e); NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1180 (6th Cir.1988). The party seeking to overturn the results of a representation election shoulders the burden of showing that the election was not conducted fairly; it must establish that unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election. Id. at 1180.

The company argues that the affidavits it filed in support of its objections to the election showed that union supporters interfered with employees' exercise of individual choice by distributing hats and T-shirts before, between, and during voting periods, as a bribe or reward for voting for the union. It contends that these improper activities on election day had such an impact that the election should be set aside and that, since substantial and material issues of fact were raised in its objections, an evidentiary hearing was required. The NLRB argues that the company did not present evidence of any fact at variance with those assumed by the regional director and that it failed to prove misconduct on the part of union supporters which would warrant setting aside the election. We do not set aside NLRB decisions for failure to grant an evidentiary hearing on election disputes unless the objections raise substantial and material factual issues which, if proven, would invalidate the union's certification. Basic Wire Prods., 516 F.2d at 263-64.

The Board's regulations permit the Regional...