N.L.R.B. v. Kilgore Corp., 74--1506

• Decision Date: 13 February 1975
• Docket Number: No. 74--1506,74--1506
• Citation: 510 F.2d 1165
• Parties: 88 L.R.R.M. (BNA) 2833, 76 Lab.Cas. P 10,667 NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. KILGORE CORPORATION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1165

510 F.2d 1165

88 L.R.R.M. (BNA) 2833, 76 Lab.Cas. P 10,667

NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. KILGORE CORPORATION, Respondent-Appellee.

No. 74--1506.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted Dec. 2, 1974.

Decided Feb. 13, 1975.

Elliot Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Peter Nash, John Irving, Patrick Hardin, John Burgoyne, Corinna Metcalf, Frank C. Morris, Jr., John J. A. Reynolds, Jr., Director, Region 26, N.L.R.B., Memphis, Tenn., for petitioner-appellant.

Richard A. Brackhahn, Bowling, Brackhahn & Jackson, Yelverton Cowherd, Jr., Memphis, Tenn., for respondent-appellee.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

The National Labor Relations Board has petitioned this Court, pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C. § 160(e), for enforcement of its bargaining order issued against the Kilgore Corporation. Kilgore Corporation (Kilgore) has cross-petitioned to have the order reviewed and set aside. The Board's Decision and Order are reported at 209 NLRB No. 134.

The Decision and Order, which granted the General Counsel's motion for summary judgment, found that Kilgore violated Sections 8(a)(5) and (1) of the Act by refusing to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the certified collective bargaining representative of employees in the appropriate unit at Kilgore's plant in Toone, Tennessee. The Order required Kilgore to cease and desist from the unfair labor practice found, and similar violations of the employees' Section 7 rights, and, affirmatively, to bargain with UAW on request and to post appropriate notices.

UAW was certified after it won a rerun election ordered by the Board. The refusal to bargain is Kilgore's vehicle for obtaining review by this Court of the Board's decision setting aside the first election (which election the UAW lost) and ordering the rerun election.

Concerning the first election the Board held that Kilgore destroyed the 'laboratory conditions' for a fair and free election by not posting the official NLRB notice of election in the proper places and far enough in advance of the election. The Board's decision in the underlying representation proceeding is reported at 203 NLRB No. 28.

Kilgore is engaged in the manufacture and distribution of phrotechnic products in Toone, Tennessee. Its employees are scattered throughout approximately sixty buildings, approximately seventy per cent of the employees being located in three of the buildings; however, Kilgore has one cafeteria which is used by all employees, for lunch and for daily breaks.

UAW filed its representation petition on February 24, 1972. The Board's Regional Director issued a Decision and Direction on the bulletin board in the personnel which excluded 'over-the-road truckdrivers' from the appropriate unit. Kilgore filed with the Board a timely request for review, objecting to the exclusion from the unit of the over-the-road truckdrivers.

On April 27, 1972 the Acting Regional Director sent a letter to Kilgore, enclosing ten copies of the official NLRB notice of election. The letter stated in part:

Please immediately post the notices at conspicuous and usual posting places easily accessible to the voters.

The notice set out the date, time, place of polling, eligibility requirements, the employees included in and excluded from the voting unit, examples of conduct which may result in the setting aside of the election, and a summary statement of employee rights under the National Labor Relations Act.

The election was set for Thursday, May 11, 1972 to begin at two o'clock p.m., in the cafeteria. In accord with the Regional Director's unit determination the notice expressly excluded over-the-road truckdrivers from the unit.

The Board denied Kilgore's request for review of the unit determination, on Friday, May 5, 1972.

On Monday or Tuesday, May 8 or 9, 1972 Kilgore posted a notice in its main personnel office. All of the other official government notices, including the wage and hour notice and the notice required by the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, were posted on the bulletion board in the personnel office. However, Kilgore's president testified:

As a matter of a routine workday the employees would not come into this office, but they do visit the office on personal matters. (A. 72)

On Wednesday, May 10, 1972 at 6:30 a.m., Kilgore posted a second notice of election in the cafeteria where the polling was scheduled for the following day. When a Board agent, named Kirby, contacted Kilgore's attorney, on May 10th, regarding a report by UAW that no notice had been posted, the attorney advised Kirby, the Board agent, that the notices had been posted in the personnel office and in the cafeteria. These were the places that notices had been posted in the two previous elections conducted by the Board. Kilgore's attorney offered to postpone the election for one week if the notice-posting had created any problem, but Kirby replied in the negative as to postponement of the election.

Kirby told Kilgore's attorney that he had raised the possibility of rescheduling the election, with the union's representatives, and that they had declined, and they advised Kirby that they wished to proceed with the election as scheduled.

The election was held on May 11, 1972 at 2:00 p.m. The tally sheet reveals approximately 272 eligible voters. The employer stated, and the Board assumed, that three persons on the eligibility list left Kilgore's employ before the election.

The election resulted in 132 votes for UAW, 132 votes against UAW, one void ballot, and four challenged ballots. The Regional Director sustained two of the challenges, and overruled two challenges. One of the overruled challenges was a vote against UAW, and, because the other vote would not change the outcome of the election, it was not opened. Not counting the void ballot, 98.8% of the eligible voters participated in the election.

UAW subsequently filed fourteen objections to the election. All objections, except the objection pertaining to the posting of the election notices, were eventually overruled or withdrawn, and a new election was ordered.

The rerun election ordered by the Board was held on May 24, 1973. Of approximately 241 eligible voters, 130 cast votes for UAW, 83 cast votes against UAW, with ten challenged ballots. Counting the challenged ballots, 92.5% of the eligible voters participated in the rerun election.

It is noteworthy that a higher percentage of eligible voters participated in the first election than in the rerun election.

The sole issue in this case is whether the Board acted within its discretion in setting aside the first election and ordering the rerun election.

The Board has wide degree of discretion in conducting and supervising representation elections, to the end of insuring that such elections are conducted fairly and that the results reflect the free choice of a majority of employees in the appropriate unit. NLRB v. A. J. Tower Co.,329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). This Court will set aside the Board's determination only if it has acted arbitrarily and abused its discretion. NLRB v. Dean Foods, Co., 421 F.2d 664 (6th Cir. 1970), cert. denied, 398 U.S. 939, 90 S.Ct. 1843, 26 L.Ed.2d 271.

After considering the record as a whole, we conclude that the Board has acted arbitrarily and has abused its discretion. We deny enforcement of its order.

The Board based its decision in the underlying representation case entirely on the times and places the two notices were posted, and the fact that Kilgore's operations at its Toone, Tennessee plant are conducted in many separate buildings. The Board held that because of the manner in which the notices were posted the employees were not sufficiently advised of the time, date, location of polling, eligibility for voting, and their rights under the National Labor Relations Act; that the employees were unable to discuss election issues 'so that they might come to a reasoned decision by the date of the election;' and that thereby the laboratory conditions necessary for a fair election were destroyed.

In General Shoe Corp., 77 NLRB 124, 126--127 the Board wrote:

Conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice. An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.

In election proceedings it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, . . . the requisite laboratory conditions are not present and the experiment must be conducted over again.

We conclude, for the reasons set out below, that the times and places the official election notices were posted did not interfere with the employees' freedom of choice and did not disturb the laboratory conditions for the first election.

The Board has not established a rule specifying the time prior to an election when notices must be posted, nor the exact places where the notices must be posted. ¹

In examining the record it is important to note that Kilgore did not have the burden before the Board of proving that the election was fairly conducted; rather, the burden is on the party filing objections to an election, namely the union, to establish that the election was not fairly...