N.L.R.B. v. Krafcor Corp.

• Decision Date: 28 July 1983
• Docket Number: No. 82-2068,82-2068
• Citation: 712 F.2d 1268
• Parties: 114 L.R.R.M. (BNA) 2054, 98 Lab.Cas. P 10,337 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KRAFCOR CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1268

712 F.2d 1268

114 L.R.R.M. (BNA) 2054, 98 Lab.Cas. P 10,337

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KRAFCOR CORPORATION, Respondent.

No. 82-2068.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1983.

Decided July 28, 1983.

Paul W. King, Ellis, King & Ellis, Springfield, Mo., for respondent.

Carol A. De Deo, Mendelssohn V. McLean, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.

Before JOHN R. GIBSON and GEORGE G. FAGG, Circuit Judges, and HENRY WOODS, ^* District Judge.

WOODS, District Judge.

This case is before the Court on an application for enforcement of an order of the National Labor Relations Board issued pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e). The dispute involves a successful attempt by the Teamsters to unionize the respondent Krafcor's maintenance, warehouse and trucking employees. Of the seventy votes cast in the election, 37 were for the Union and 33 were opposed to certification. Krafcor filed timely objections to the election which were reviewed and overruled by the Regional Director, whose recommendations were then approved by a three-member panel of the Board. To obtain judicial review Krafcor refused to bargain with the Union. The Board, on the General Counsel's motion for summary judgment, directed Krafcor to recognize the Union as a bargaining agent for its employees. Respondent Krafcor objects to this order and in doing so attacks various acts of the Union which occurred during the election process.

It is well settled that election results may not be lightly set aside. The party challenging the outcome of the election bears the burden of producing evidence sufficient to mandate a result different from that obtained through the casting of ballots. As has been stated in this Circuit, "... that burden is a heavy one, requiring the objecting party to show by specific evidence not only that improprieties occurred, but also that they interfered with employees' exercise of free choice to such an extent that they materially affected the election results." Beaird-Poulan Division, Emerson Elec. Co. v. NLRB, 649 F.2d 589, 592 (8th Cir.1981).

The propriety of the Board's decision is, in this court, determined by a finding that the conclusions of the Board are supported by substantial evidence. We, therefore, must first examine the factual findings and the recommendations made by the Regional Director. Beaird-Poulan v. NLRB, supra.

In the first section of objections, Krafcor alleges that the Union, in a letter dated two days prior to the election, misrepresented facts concerning union wage rates and pension benefits, union strikes, and wage and benefit increases obtained by the Union at other companies.

The Regional Director reviewed Krafcor's charges in considerable detail. In doing so he applied the standards enunciated in General Knit of California, 239 N.L.R.B. 619 (1978) and Hollywood Ceramics Company, Inc., 140 N.L.R.B. 221 (1962). The petitioner, National Labor Relations Board suggests that we should abandon the tests set down in Hollywood Ceramics in favor of retroactive application of the rule adopted in Midland National Life Ins. Co., 263 N.L.R.B. No. 24 (1982) and Shopping Kart Food Market, Inc., 228 N.L.R.B. 1311 (1977). ¹ Since we conclude that the decision of the Regional Director is correct under the standards of Hollywood Ceramics, we find it to be unnecessary at this time to determine whether Midland should be applied retroactively. ²

According to Hollywood Ceramics, election results will not be disturbed unless there has been a substantial departure from the truth made at such a time that an effective reply is impossible. The misrepresentations must involve issues of some import and must be of such a nature that the outcome of the election is affected.

Krafcor made approximately fifteen specific objections to the representations made by the Union in its election eve letter. The Regional Director carefully reviewed each objection and gathered facts both in support and in contradiction of the statements. We have thoroughly scrutinized these findings and can find only two statements by the Union which the Director concluded were totally erroneous. The first incorrect statement was made concerning the date of a strike at two other plants. While the Union admitted that this statement was not correct, the statement of wage increases in the current contracts was correct as to both amount and time. ³ We agree with the Director's conclusion that the employees were capable of evaluating both employer and union statements concerning these strikes and that in the totality of circumstances there was not a substantial misrepresentation.

In another admittedly erroneous statement, the Union claimed that Krafcor drivers were not compensated for breakdown or dock time. According to the Union this statement was based upon information supplied by employees. Again, we agree with the Director that this was not a substantial misrepresentation. Indeed, as the Director noted, the employees themselves were thoroughly acquainted with Krafcor's compensation policies and were fully capable of determining the accuracy of the statement.

Although Krafcor made numerous other objections, the Director found the statements in the impugned letter to be...