N.L.R.B. v. Nixon Gear, Inc.
| Decision Date | 26 May 1981 |
| Docket Number | No. 671,D,671 |
| Citation | 649 F.2d 906 |
| Parties | 107 L.R.R.M. (BNA) 2529, 91 Lab.Cas. P 12,783 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NIXON GEAR, INC., Respondent. ocket 80-4239. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard S. Zuckerman, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner.
Brian E. Hayes, Skoler, Abbott & Hayes, P.C., Springfield, Mass., for respondent.
Before LUMBARD, MANSFIELD and MESKILL, Circuit Judges.
The National Labor Relations Board ("the Board") seeks enforcement of an order issued against Nixon Gear, Inc. ("the Company") on August 27, 1980, directing the Company to bargain in good faith with District Lodge No. 137, International Association of Machinists & Aerospace Workers, AFL-CIO ("the Union"). Following the Union's narrow victory in a representation election, the Company filed objections to certain pre-election conduct on the part of the Union. Without holding an evidentiary hearing upon the Company's objections, the Board granted certification to the Union and subsequently issued the order, enforcement of which is requested here. We deny enforcement of the Board's order.
The Company manufactures and sells custom gears at its facility in Syracuse, New York, where the representation election was held. After the Union filed a petition for certification as the collective bargaining representative for eligible employees at the Company's Syracuse facility, the Board conducted a representation election on December 19, 1979. Of the 45 eligible employees, 44 voted. The result was 23 to 21 in favor of the Union. No ballots were challenged, but the Company filed timely objections to conduct affecting the results of the election. The Company objected, inter alia, that the Union had circulated campaign literature containing material misrepresentations to which the Company did not have adequate time to respond and that the Union had made improper financial and job-related inducements to eligible employees. The Company requested a hearing on its objections.
The Regional Director conducted an investigation of the objections pursuant to section 102.69 of the Board's Rules and Regulations, 29 C.F.R. § 102.69 (1980), but did not hold a hearing. 1 Based upon his investigation, the Regional Director recommended to the Board that all of the Company's objections be overruled and that the Union be certified. His investigation revealed the following.
The Company's first two objections alleged that the Union had distributed campaign literature which contained material misrepresentations. At issue were statements made in a handwritten notice captioned "Ask Yourselves Why." The Company contended that the following four paragraphs of this handbill contained material misrepresentations:
Ask yourselves why the company:
B. Has awarded pay raises to certain individuals and most notably not toknown pro-union persons? This smacks of discrimination.
C. Offered $10 hourly to pro-union man to campaign against union? He refused.
D. Would not inform the wife of an injured employee of procedures to follow for benefit of medical coverage, state disability, etc.?
E. Will pay for only 4 days this shut-down instead of 5 days? This surely proves they care for you.
A. 22 (emphasis in original). Copies of the handbill were distributed by the Un ion to employees who attended the Union meeting held on December 15, 1979 and w ere further distributed at the plant early on the morning of December 18. The Company contended that it first became aware of the literature on December 18, the day before the election. The Regional Director listed the "testimony" concerning the truthfulness of each paragraph. 2 The Company produced evidence that the allegedly discriminatory pay raises denounced in Paragraph B were actually awarded pursuant to the Company's established practice of scheduling raises to coincide with employees' anniversary dates with the firm. Furthermore, the Company pointed out that some of the employees who received raises appeared to be actively supporting the Union by, for example, wearing Union buttons. With respect to Paragraph C, the Regional Director apparently misunderstood the Company's position. He stated that the Company admitted that the $10 per hour bribe was offered, but the company claims that it has consistently denied the bribe attempt. 3 With respect to Paragraph D, the Company conceded that an employee's wife had not been informed of procedures to follow to obtain benefits for her injured husband, but explained that this had occurred more than 21/2 years earlier under the Company's previous owners. With respect to Paragraph E, the Company conceded that that year there had been four paid shut-down days instead of five, but explained that the reduction was caused by the different way that holidays fell in those years. The Regional Director concluded that none of the alleged misrepresentations warranted holding a hearing or overturning the election.
Turning to the Company's objection that the Union had made improper financial and job-related inducements to eligible employees, the Regional Director first reviewed statements from employee witnesses who claimed to have heard rumors that Larry Darling, a co-worker, had been promised more favorable employment at a local unionized plant of the Miller Brewing Company ("Miller") in return for his efforts on behalf of the Union at Nixon Gear. The testimony of those who had spoken with Darling showed that he was confident that he would obtain employment at Miller, where his wife already was employed. It appeared that Darling's activities on behalf of the Union had been limited to attending one or two Union meetings. The investigation failed to reveal that the Union itself told employees that it had offered a job to Darling or that Darling was an agent of the Union. Moreover, at least once early in the campaign, Darling denied the rumor. Based on all of the above, the Regional Director concluded that this portion of the Company's objection did not warrant a hearing and recommended that it be overruled.
The Regional Director was equally unmoved by another example of alleged improper financial and job-related inducements by the Union. The Company's complaint arose out of events at a Union organizational meeting held in late November. At that meeting, the Union presented a Union steward or official from Miller who compared the Nixon Gear benefits with those available at a Union plant where he had worked prior to obtaining employment at Miller. Witnesses who attended the meeting stated that they formed the impression that the Union had helped the speaker obtain his job at Miller, but conceded that neither the Union nor the speaker ever said this explicitly. The Regional Director dismissed their "testimony" as speculative and, also without a hearing, recommended that this portion of the objection be overruled. After rejecting other Company objections not at issue here, 4 the Regional Director recommended that the Company's objections be overruled in their entirety and that a Certification of Representation be issued.
The Board declined to order a hearing and adopted the Regional Director's findings and recommendations with one change. Although the Regional Director found that the Company had admitted that its vice president had offered the $10 per hour bribe, the Board concluded that even if the accusation were false, such a misrepresentation would be insufficient, in the circumstances of this case, to warrant setting aside the election. On April 3, 1980 the Board certified the Union as the exclusive representative of the eligible employees at the Company.
After the Board's decision, the Union requested that the Company commence collective bargaining, but the Company refused. In response to the ensuing unfair labor practices complaint, the Company admitted its refusal to bargain, but raised the invalidity of the election as a defense. The Board granted the General Counsel's motion for summary judgment against the Company, finding that the Company's refusal to bargain violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1) (1976), and issued the order which it now seeks to enforce.
The Company argues that the evidence submitted by it in support of its objections was sufficient to require the Board to direct that an evidentiary hearing be conducted. As the party seeking a hearing, the Company bears a heavy burden, see Bausch & Lomb Inc. v. NLRB, 404 F.2d 1222, 1226 (2d Cir. 1968). "The conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse," NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237 (1971), lest appellate interference threaten the essential functioning of a system that governs, according to well-settled standards, the conduct of nearly 10,000 elections annually. Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1228 (2d Cir. 1974). Nevertheless, according to those well-settled standards the Company was entitled to a hearing if "by prima facie evidence, it demonstrate(d) the existence of 'substantial and material factual issues' which, if resolved in its favor, would require the setting aside of the representation election." NLRB v. Bristol Spring Manufacturing Co., 579 F.2d 704, 706-07 (2d Cir. 1978); NLRB v. Newton-New Haven Co., 506 F.2d 1035, 1036 (2d Cir. 1974); Polymers, Inc. v. NLRB, 414 F.2d 999, 1004-05 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24...
To continue reading
Request your trial
-
Jamesway Corp. v. N.L.R.B., s. 80-2245
...Board's petition for enforcement of its bargaining order without remanding the case for a hearing. Id. at 830. Accord NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir. 1981). Although this court has sometimes remanded cases involving objections based on pre-election misconduct, in almost ever......
-
N.L.R.B. v. ARA Services, Inc.
...686 F.2d 740, 744 (9th Cir.1982); NLRB v. Claxton Manufacturing Co., Inc., 613 F.2d 1364, 1366 (5th Cir.1980); NLRB v. Nixon Gear, Inc., 649 F.2d 906, 910 (2d Cir.1981). Woodruff specifically identified the "union spokesmen" involved and the threats they used. He referred to three different......
-
Mosey Mfg. Co., Inc. v. N.L.R.B., 81-1668
...the collective bargaining representative of their choice, the court will withhold its assistance. See, e.g., NLRB v. Nixon Gear, Inc., 649 F.2d 906, 914 (2d Cir.1981); cf. NLRB v. Majestic Weaving Co., supra, 355 F.2d at 86. The best protection for these workers' freedom of choice would be ......
-
Bell Foundry Co. v. N.L.R.B.
...citing NLRB v. Katz, 701 F.2d 703 (7th Cir.1983); NLRB v. Connecticut Foundry Co., 688 F.2d 871 (2nd Cir.1982); and NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2nd Cir.1981). But none of the cases upon which Bell relies stands for the proposition that delay is prejudicial in itself; 1 indeed, t......