N.L.R.B. v. Monark Boat Co.

• Decision Date: 22 July 1983
• Docket Number: No. 82-1963,82-1963
• Citation: 713 F.2d 355
• Parties: 113 L.R.R.M. (BNA) 3749, 98 Lab.Cas. P 10,316 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONARK BOAT COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 355

713 F.2d 355

113 L.R.R.M. (BNA) 3749, 98 Lab.Cas. P 10,316

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONARK BOAT COMPANY, Respondent.

No. 82-1963.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1983.

Decided July 22, 1983.

Elinor Hadley Stillman, Barbara A. Atkin, N.L.R.B., Washington, D.C., 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.

Tim Boe, Jim Hunter Birch, Rose Law Firm, Little Rock, Ark., for respondent Monark Boat Co.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BENNETT, ^* Circuit Judge.

ARNOLD, Circuit Judge.

The National Labor Relations Board asks this Court to enforce its order that Monark Boat Company of Monticello, Arkansas, bargain with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (UBC) ¹. Monark urges us to revoke the union's certification and order a new election, or order a post-election hearing to resolve issues raised by Monark's objections. We agree with Monark that a hearing is necessary on the issue of alleged coercion. Enforcement of the Board's order is therefore denied at this time, and the cause is remanded with directions that the Board conduct an evidentiary hearing and allow direct and cross-examination of all testimony upon which it intends to rely. ²

I.

On November 6, 1980, the UBC won a Board-conducted election by a vote of 77 to 57. Thirty-three eligible voters abstained. Monark filed approximately 50 objections, alleging, in general, that (a) UBC officials and employee supporters created an atmosphere of coercion which tainted the election; (b) UBC officials and employee supporters made material misrepresentations about significant campaign issues; and (c) UBC officials engaged in improper electioneering in or near the voting areas, immediately before and during the election. The Board's Acting Regional Director (ARD) conducted an administrative investigation and afforded the parties an opportunity to submit evidence. ³ He overruled all of Monark's objections without a hearing and certified the UBC as the exclusive bargaining representative.

Monark appealed to the Board. The Board did not ask the ARD to send it the information that he obtained through the administrative investigation and denied Monark's request for review. The UBC requested that Monark bargain with it, but Monark refused. The UBC then filed an unfair-labor-practice charge, and the Board issued a complaint charging the company with violations of Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5) (1976). In its response Monark alleged that it need not bargain with the UBC because it had been denied an evidentiary hearing on its objections to the election. ⁴ The General Counsel moved for summary judgment on the ground that Monark had already litigated these issues and lost. The Board granted summary judgment and ordered Monark to bargain with the UBC. The Board then asked us to enforce its order.

II.

The trier of fact must conduct a hearing to determine the validity of a certification election when there are substantial and material issues of fact. NLRB v. Griffith Oldsmobile, Inc., 455 F.2d 867, 868 (8th Cir.1972). ⁵ In order to make out a substantial and material issue of fact which warrants a hearing

* * * [i]t is incumbent upon the party seeking a hearing to clearly demonstrate that factual issues exist which can only be resolved by an evidentiary hearing.

The exceptions must state the specific findings that are controverted and must show what evidence will be presented to support a contrary finding or conclusion. * * *

Mere disagreement with the Regional Director's reasoning and conclusions does not raise 'substantial and material factual issues.' This is not to say that a party cannot except to the inferences and conclusions drawn by the Regional Director, but that such disagreement, in itself, cannot be the basis for demanding a hearing. To request a hearing a party must, in its exceptions, define its disagreements and make an offer of proof to support findings contrary to those of the Regional Director.

Id. at 868-69 (quoting NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967)). We now turn to Monark's objections to determine whether they raise material issues of fact.

A.

During a representation election the Board must 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." General Shoe Corp., 77 N.L.R.B. 124, 127 (1948). The Board must set aside an election if an atmosphere of coercion and fear rendered free choice impossible. Such a determination is difficult to make, and each case must turn on its facts. See Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1005 (3d Cir.1981).

Monark's objections and supporting affidavits at least suggest that the elections were held in a coercive environment. We note the following alleged incidents: ⁶

1) During the first week of September, about two months before the November 6th election, an employee described as "a known union supporter" told some workers not to work overtime and that their cars would be damaged if they crossed a picket line (Obj. 15b, App. 132, 230).

2) Irma Holdcraft, an employee, told a group of employees around the middle of September that even if the union came in and called for a strike, she would work. Another employee, a "strong union supporter," responded, "I'm not saying this will happen here, but it has been known to happen where someone crossing a picket line got bricks and clubs up side their heads" (Obj. 15c, App. 231). Ms. Holdcraft then "stopped talking." Ibid.

3) Ms. Holdcraft also stated that on another occasion another employee, also a strong union supporter, said that "no one would cross her picket line because she would be prepared" (Obj. 15d, App. 132, 231).

4) Irma Gean Harrison also said she would come to work in the event of a strike. Another employee said that "people can get killed or hurt crossing picket lines" (Obj. 15e, App. 132, 232). Ms. Harrison took this to mean that she could get killed crossing a picket line (App. 232).

5) On November 6, the morning of the election, an employee said, "After the union comes in, people that don't join the union won't be here very long" (Obj. 15f, App. 133, 232).

6) As the employees were lining up to vote, Robert White indicated he would not vote. An employee wearing a union T-shirt said, "Just do what I told you, Robert." White joined the line waiting to vote (Obj. 15g, App. 133, 191).

7) Harry Densmore, an employee who supported the union, had on three separate occasions damaged company property (Obj. 23a, App. 74-75). Monark presented its production manager, E.G. Dendy, who swore that pro-union sentiments motivated these actions and that Densmore intended to scare others into supporting the union (App. 234-35).

8) On October 23, three pro-union employees refused to complete a project (Obj. 23b, App. 138, 239-40) and left Ms. Holdcraft, an anti-union employee, to complete it. This evidently was not how they had divided the work in the past, and Ms. Holdcraft "felt that the reason that the three employees walked off the project was because of her expressed anti-union sentiments as opposed to their pro-union sentiments" (App. 240).

9) On July 30, 1980, a union supporter approached Supervisor Gale Mac Harrison at his home and asked him to help the union organize. Harrison is Ms. Holdcraft's son-in-law and Irma Gean Harrison's husband. Harrison refused, stating that as a supervisor he could not properly become involved. The same union supporter, Mark Huff, also went to Ms. Holdcraft's house and discussed the possibility of Harrison's helping the union. On September 12, 1980, Harrison's dog became ill. The dog died that night of rat poisoning--according to a veterinarian, either a massive dose recently administered or minor doses over the preceding two weeks. On October 6 another union adherent came to the Harrison home and asked him to support the union and become an "informant" (App. 199) for it. Harrison had owned the dog for 2 1/2 years. It was kept chained at all times. No neighbors had complained about it. There had been no other dog poisonings in the neighborhood. In fact, a neighbor of the Harrisons had ten dogs, none of them poisoned (see generally Obj. 11, App. 193-201).

These claimed incidents, considered in isolation, would probably be insufficient to raise an inference of coercion and intimidation sufficient to make an evidentiary hearing necessary. But taken together, we think, they do reach that level.

We find the poisoning of the dog especially disturbing. Harrison stated that he had "no facts that anyone from the union organizing effort poisoned my dog. I just believe they did it" (App. 194). In context, it is clear that Harrison's statement that he had "no facts" meant only that he had no eyewitness or other direct evidence. There was, however, a good deal of circumstantial evidence, if the Harrison affidavits are to be believed, as they must be at this procedural stage of the case. The state of the record on this question would be sufficient to preclude the granting of a motion for summary judgment, if this were a civil action in a federal district court.

The poisoning occurred within a month of what were either acts of sabotage or unusual work disruptions. The company suffered at least several hundred dollars in damages on account of mishaps involving Densmore and could have lost over $1,000 because of the failure of other pro-union employees to complete a project in a routine manner. Acts of sabotage and vandalism may undermine free...