N.L.R.B. v. Basic Wire Products, Inc.

Decision Date07 May 1975
Docket NumberNo. 74-1922,74-1922
Citation516 F.2d 261
Parties89 L.R.R.M. (BNA) 2257, 76 Lab.Cas. P 10,855 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BASIC WIRE PRODUCTS, INC., Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Elliott Moore, William F. Wachter, Deputy Associate Gen. Counsel, N. L. R. B., Joseph C. Thackery, Peter Carre, Washington, D. C., Emil C. Farkas, Director, Region 9, N. L. R. B., Cincinnati, Ohio, for petitioner.

Robert K. Drummond, Foley & Lardner, Gary J. Okey, Milwaukee, Wis., for respondent.

Before CELEBREZZE, MILLER and ENGEL, Circuit Judges.

CELEBREZZE, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order that Respondent bargain with the United Paperworkers International Union. Respondent seeks to deny enforcement on the grounds that the Union committed unfair labor practices during the representation election and that section 10(b) of the National Labor Relations Act and principles of res judicata require dismissal of the Union's underlying charge.

On July 28, 1972, by a vote of 31 to 20 (out of 52 eligible voters), the International Brotherhood of Pulp, Sulphite and Paper Mill Workers (Sulphite Workers) won a consent election among certain of Respondent's employees. Respondent promptly objected to the Union's certification, asserting that a Union agent had given cash to an eligible voter near the polling place on election day, that Union supporters had promised immediate financial gain to the employees if the Union won, and that an eligible voter had been threatened by Union adherents two weeks before the election. After an administrative investigation, during which Respondent submitted a single affidavit and some correspondence with counsel, the Board's Regional Director recommended that the Sulphite Workers be certified as the employees' bargaining representative. Submitting no additional evidence, Respondent requested a full hearing on its charges or the election's invalidation. On January 18, 1973, the Board affirmed the Regional Director's Report and certified the Sulphite Workers.

On February 22, 1973, the Sulphite Workers filed a charge alleging a section 8(a)(5) and (1) violation, based on Respondent's refusal to bargain upon request. The Regional Director issued a complaint on March 13, and Respondent filed an answer asserting its objections to the Union's conduct during the election. On July 26 the Regional Director permitted the charge to be withdrawn, at the Union's request.

Although the record is unclear as to why the Union sought to have the charge withdrawn, it may have been prompted by the Union's July 24 petition to amend its certification to substitute the United Paperworkers International Union (Paperworkers) for the Sulphite Workers, since the Sulphite Workers had recently merged into the Paperworkers. On August 23, the Acting Regional Director granted the amendment of certification, and on September 12 his action was affirmed by the Board.

The Union promptly requested that Respondent bargain but was refused on September 27. On October 25, the Union filed the section 8(a)(5) and (1) charge which underlies the Board's order. Respondent answered by reiterating its election objections and asserting procedural reasons for dismissal of the charge. On April 29, 1974, the Board granted the General Counsel's summary judgment motion and issued its Decision and Order, which requires Respondent to bargain with the Union and to post appropriate notices.

Respondent refuses to bargain with the Union because it views the certification as defective. If the amended certification is proper, it follows that Respondent violated section 8(a)(5) and (1) of the National Labor Relations Act. 1 NLRB v. Wackenhut Corp., 471 F.2d 761, 762 (6th Cir. 1972).

Respondent's objections to the certification center on alleged improper activities by Union supporters and agents preceding the representation election. Respondent argues that its objections to the certification show that the "laboratory conditions" 2 required during representation elections did not exist or at least that a hearing is required on this allegation.

In reviewing the Board's decision, we exercise a limited scope of review. Our task is to ascertain whether the Board acted in abuse of the "wide degree of discretion" which Congress has given the Board to resolve disputes over employee representation. NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Kilgore Corp., 510 F.2d 1165, 1167 (6th Cir. 1975). Respondent "must shoulder a heavy burden of proof to demonstrate by specific evidence that the election was unfair." Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974). Furthermore, the Board's failure to hold an evidentiary hearing on Respondent's exceptions to the Regional Director's Report does not nullify the Board's order unless the exceptions were "detailed, specific, and factual" and raised "substantial and material factual issues" which, if proven by Respondent would invalidate the Union's certification. 29 C.F.R. § 102.69(c); NLRB v. Medical Ancillary Services, Inc., 478 F.2d 96, 99 (6th Cir. 1973); NLRB v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).

Respondent's objections to the Union's pre-election conduct involve three separate allegations.

The first is that Union adherents "created the impression of immediate financial gain by virtue of voting in favor of the Union," thus inhibiting the employees' free choice in deciding whether to choose union representation. The only evidence proffered by Respondent was an affidavit of its Vice President to the effect that "union people" told several employees "that it would pay to support the Union." No specific misconduct is cited beyond this general assertion.

We agree with the Board's finding that this general allegation, even if proven,

indicates that (the Union) engaged in nothing more than normal pre-election campaign promises of the type that employees may, on their own, evaluate, and accept or reject, as election propaganda. 3

If the alleged statements meant anything more than that the Union would work to increase the employees' salaries, Respondent was obligated to offer evidence to that effect. In the absence of a proffer of such evidence, the Board properly refused to invalidate the election or to hold a hearing on the allegations. As we said in NLRB v. Shawnee Plastics, Inc., 492 F.2d 869, 871 (6th Cir. 1974),

(Respondent's) statements are ambiguous based on hearsay and self serving declarations. They do not, in our judgment, allege facts which if proven would be cause for setting aside the election.

See also NLRB v. Custom Craft Mfg. Co., 493 F.2d 500 (6th Cir. 1974); NLRB v. Sauk Valley Mfg. Co., 486 F.2d 1127, 1131 (9th Cir. 1973).

Respondent's second objection is that the Union's cash payment to an election observer inhibited its employees' free choice. Specifically, Respondent's Vice President alleged by affidavit that he observed a Union agent (Riley) "put money into (the) pocket" of an employee (Long), who served as the Union's election observer. The affidavit asserted that the employee received normal compensation from Respondent (including overtime) for his work on election day, so that the Union's payment did not compensate him for wages lost during the election.

We have previously embraced the Fourth Circuit's holding in Collins & Aikman Corp. v. NLRB, 383 F.2d 722, 729 (4th Cir. 1967), that "unreasonable or excessive economic inducements" to employees from Union officials are impermissible during an election campaign. Plastic Masters, Inc. v. NLRB, 512 F.2d 449 (6th Cir. 1975). In Plastic Masters, we denied enforcement to a Board order where the Union had made substantial overpayments to a respected and influential employee and several other employees ostensibly to cover expenses for attending numerous pre-election hearings and in other ways assisting the Union's organizing effort. The Union won the election by a vote of 51 to 46. The only Board representative who had heard evidence recommended setting aside the election but was overruled by the Regional Director and the Board. We held that the numerous overpayments, made before the election and known to other employees, "undoubtedly had a tendency to influence the election results," quoting Collins & Aikman Corp., 383 F.2d at 729.

This case presents a far different factual situation. As the Regional Director stated after conducting an administrative investigation into Respondent's allegations,

Riley admits that he paid Long $20.00 after the polls closed. He reports that he paid the money to Long to reimburse him for expenses incurred in attending pre-election day conferences with Riley at Chillicothe, Ohio, some 12 miles away from Long's home in Bourneville, Ohio, and 50 minutes away from his place of employment. Riley submitted a receipt signed by Long showing receipt from Riley of $20.00 as reimbursement for expenses and lost time incurred as the result of serving as an election observer. Riley states that he purposely did not pay Long until after the results of the election were known and they had left the vicinity of the polling area in order to avoid giving the wrong impression to other persons.

The mere fact, there being nothing more, that a union's election observer is paid after the polling period had closed and after the results of the election were known, for time spent in connection with election duties and/or for pre-election time and travel expenses, does not constitute conduct sufficient to warrant setting aside the election.

In the absence of evidence rebutting this account, Respondent was not entitled to an evidentiary hearing on this matter. Unlike in Plastic Masters, the payment here was not made until after the election, which the Union won...

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