N.L.R.B. v. Pacific Intern. Rice Mills, Inc.

• Decision Date: 17 April 1979
• Docket Number: No. 77-4034,77-4034
• Citation: 594 F.2d 1323
• Parties: 101 L.R.R.M. (BNA) 2764, 86 Lab.Cas. P 11,356 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC INTERNATIONAL RICE MILLS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1323

594 F.2d 1323

101 L.R.R.M. (BNA) 2764, 86 Lab.Cas. P 11,356

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC INTERNATIONAL RICE MILLS, INC., Respondent.

No. 77-4034.

United States Court of Appeals Ninth Circuit.

April 17, 1979.

Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for petitioner.

William F. Terheyden, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent.

Petition to Review a Decision of the National Labor Relations Board.

Before BROWNING and CARTER, Circuit Judges, and WOLLENBERG, ^* District Judge.

WOLLENBERG, District Judge:

The National Labor Relations Board (NLRB), pursuant to the National Labor Relations Act (NLRA), as amended, 29 U.S.C. §§ 151 Et seq., seeks enforcement of its order granting summary judgment against respondent, Pacific International Rice Mills, Inc., for the unfair labor practice of refusing to bargain with the union, ¹ in violation of sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5). Respondent contests the underlying representation election and certification of the union as collective-bargaining representative on the grounds that there does not exist substantial evidence in the record supporting the NLRB's findings of fact and that the hearing officer, whose findings and recommendations the NLRB adopted, was improperly biased against the employer because of his union membership. The Court rejects respondent's contentions and grants the NLRB's petition for enforcement of its order.

FACTS

This controversy arose out of a disputed representation election held in April, 1975, at respondent's Woodland facility. The tally of ballots showed twenty-five votes for and twenty-one votes against the union, and six challenged ballots. The NLRB directed a hearing on the challenged ballots and on fifteen of eighteen objections to the election that the company had timely filed. The objections alleged that the union made many material misrepresentations on subjects such as benefits, the pension and profit-sharing plans, and strike votes, unlawfully interrogated employees, coerced employees to vote for the union, and created an atmosphere of fear and coercion. In addition, the company argued that the cumulative effect of the numerous misrepresentations made by the union agent, combined with the extremely close vote, mandated that the election be set aside.

A hearing examiner considered evidence presented at a hearing in October, 1975, and In September, 1976, the Regional Director of the NLRB issued a complaint that the company refused to bargain pursuant to a union request in violation of section 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5). The company answered that it had insufficient knowledge of the union's status as a labor organization and denied that the union had requested bargaining and that it had refused. Respondent-company also renewed its contention that the April, 1975, election should be set aside. Following a motion for summary judgment and issuance of an order to show cause by the NLRB, respondent, in its response to the order to show cause filed in November, 1976, raised the defense that after the representation hearing, information had come to its attention that the union to which the hearing examiner belongs might be affiliated with the labor organization involved in the action at hand, the Teamsters Union.

the company's post-hearing brief, and issued a report recommending that the NLRB overrule all objections except the company's challenges to four ballots, and certify the union as the collective-bargaining representative as the challenges were not determinative of the election. The company filed exceptions to the hearing examiner's report and a supplemental brief contending that the examiner could not have acted impartially because he is a member of the National Labor Relations Board Employees Union. In April, 1976, the NLRB adopted the hearing examiner's findings and recommendations and certified the union; the NLRB denied reconsideration of these actions.

In February, 1977, the NLRB issued a decision and order, which it has refused to reconsider, granting the motion for summary judgment based on a finding that there was no new evidence or special circumstances showing error in the representation case. ² It found that respondent violated section 8(a)(1) and (5) of the NLRA by refusing to bargain with the union and ordered respondent to cease and desist from such refusal and to bargain upon request with the union, and if an agreement is reached, to embody it in a signed contract and to post appropriate notices.

DISCUSSION

In order to determine whether to enforce the NLRB order, the Court must decide whether the NLRB reasonably exercised its broad discretion in conducting representative elections by overruling respondent's election objections and therefore finding that the company's refusal to bargain with the certified representative of its employees violated sections 8(a)(1) and (5) of the NLRA. Respondent carries a heavy burden to overcome the presumption of correctness of the NLRB determination that the election reflected the employee's free choice. See, e. g., N. L. R. B. v. Sauk Valley Manufacturing Co., Inc., 486 F.2d 1127 (9th Cir. 1973). "If the findings of the (NLRB) are supported by substantial evidence on the record considered as a whole, they are conclusive; and so long as the Board did not misapply the law, the order is to be affirmed." N. L. R. B. v. Heath Tec Division/San Francisco, 566 F.2d 1367 (9th Cir. 1978).

1. Hearing Examiner's Review of the Record.

The NLRB specifically adopted the findings of the hearing examiner. Record at 137. His determination of the validity of the respondent's objections relied upon credibility determinations. At the hearing on the objections, four of respondent's employees appearing on its behalf ³ testified that the union agent, Tony Santos, had made certain statements at two organizational meetings held on April 8, and April 12, 1975, upon which the objections were based. A fifth employee, Wesley Medlin, testified that Santos had abusively asked him to leave one meeting because of Santos' belief that Medlin was pro-employer. Santos denied making any of the objectionable statements attributed to him by these witnesses. Another employee, Daniel Barrus, supported Santos' testimony.

The hearing examiner accepted the testimony of Santos and Barrus on the ground that the other testimony was "internally self-contradictory, collectively inconsistent, the product of faulty memory, and to a large part based on subjective determinations of what Santos meant rather than what he stated." Record at 89. ⁴ This Court will not disturb credibility resolutions "unless a clear preponderance of all the (relevant) evidence convinces that they are incorrect." N. L. R. B. v. International Longshoremen's & Warehousemen's Union & Local 27, 514 F.2d 481, 483 (9th Cir. 1975); N. L. R. B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir. 1967).

The hearing examiner's opinion properly demonstrates that substantial evidence in the record supports the reasoning underlying his credibility determination. Employees Jojo and Lang both contradicted themselves on the key question of what Santos promised that union victory would mean to the employees. On the one hand, they testified that Santos stated that certain benefits would accrue immediately upon union victory, Transcript at 37, 56, but, on the other hand, they also testified that Santos stated that these same benefits would be subject to collective bargaining. Transcript at 36, 66-67. Employees Eisenhart and Peak consistently stated that Santos promised that benefits such as retirement plans and insurance...