N.L.R.B. v. Tri-City Linen Supply
| Decision Date | 22 March 1978 |
| Docket Number | TRI-CITY,No. 76-3755,76-3755 |
| Citation | 579 F.2d 51 |
| Parties | 98 L.R.R.M. (BNA) 2155, 83 Lab.Cas. P 10,521 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.LINEN SUPPLY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ralph E. Wiggen (argued), Kenneth M. Fitzsimon, Los Angeles, Cal., for respondent.
Application For Enforcement Of An Order Of The National Labor Relations Board.
Before KENNEDY and HUG, Circuit Judges, and JAMESON, * District Judge.
This case is before the court on the application of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its order issued on November 1, 1976, against Tri-City Linen Company (Tri-City). 1 The Board found that Tri-City had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the certified collective bargaining representative of its employees. 2
Finding that all issues raised in the unfair labor practice proceeding were or could have been raised in a prior representation proceeding, the Board granted the General Counsel's motion for summary judgment. Tri-City challenges the summary disposition of the case and contends that the Union was improperly certified as the collective bargaining agent of Tri-City's employees. We find substantial evidence in the record as a whole to support the Board's findings and conclude that summary judgment was proper.
Tri-City is in the business of furnishing linen goods to restaurants and beauty parlors in the Riverside, California area. On May 23, 1975, the date of the election in question, Tri-City employed eight motor route drivers who performed pick up and delivery service to the firm's customers. Prior to the election, the drivers had no union representation.
On the morning of May 9, 1975, Frank Cifu, the sole proprietor of Tri-City, was contacted by Union business agent Henry Papke, to discuss the Union's desire to organize Tri-City's route drivers. Cifu refused to talk to Papke. Later that morning, Cifu called a meeting of his drivers, 3 at which he made certain statements regarding what would happen if his employees elected to organize. 4 Cifu also polled his employees to determine their sentiment toward the Union. 5
On the same day, the Union filed a representation petition with the Board seeking certification as the bargaining representative of Tri-City's drivers. The parties executed a Stipulation for Certification upon Consent Election and waived a hearing on the bargaining unit. The Board set May 23, 1975 as the election date.
On May 19, the Union filed an unfair labor practice charge against Tri-City, based on Cifu's conduct during the May 9 meeting with his employees. The Union also filed a request to proceed with the election. Cifu received notice of the charge by mail and immediately contacted Board Agent Stephen Harris, who was named in the letter of notice as the agent in charge of the investigation. Cifu told Harris that he was unschooled in labor law and asked Harris for advice. Harris advised Cifu to contact a labor lawyer and to refrain from discussing Union matters with his employees until he was represented by competent counsel.
On May 22, Papke called a meeting of Tri-City's drivers to discuss Union wages and benefits. Seven of the eight drivers attended, although two of them arrived late. Union agent James Pelissero was also in attendance. After the meeting, Board Agent Harris met with one of the employees who attended the meeting, Alfred Gross, and took Gross' statement as part of the investigation of the prior alleged unfair labor practice.
The representation election was held on May 23, with all eight drivers voting. Four votes were cast in favor of the Union, with two votes against, one void ballot and one challenged ballot.
On May 30, 1975, Tri-City filed objections to the election, alleging that material misrepresentations by the Union and the scheduling of the election during an unfair labor practice investigation required that the election be set aside. A hearing was held before an administrative law judge, at which evidence was received regarding Tri-City's objections and the Union's earlier unfair labor practice charge. The judge found that Cifu's conduct at the May 9 meeting with his employees constituted coercive conduct under Section 8(a)(1) of the National Labor Relations Act. (29 U.S.C. § 158(a)(1). He found no merit in Tri-City's objections to the election. The judge recommended that Tri-City be required to cease and desist from the unfair labor practices, that its objections to the election be overruled, and that the Board certify the results of the May 23 election. The Board adopted the findings, conclusions and recommendations of the judge and issued a certification of the Union as representative of Tri-City's employees. 6
The Union contacted Tri-City's attorney and served a request to bargain. The attorney replied that he was not an authorized bargaining agent for Tri-City and was unable to respond to the request. On April 8, 1976, the complaint herein was filed, alleging that Tri-City had refused to bargain after receipt of a valid bargaining request. On June 29, the General Counsel filed a motion for summary judgment. In response to Notice to Show Cause, Tri-City alleged that the Union was improperly certified, that the bargaining unit was improper or so vague as to require a hearing to resolve the question of its identity, and that no proper bargaining request was received. 7 The Board granted summary judgment and entered a bargaining order.
The Board entered summary judgment on the basis that "(a)ll issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding". While this statement is not entirely accurate, we agree that summary judgment was appropriate.
The issue of whether the Union made a proper bargaining request was obviously neither litigated nor litigable in the earlier hearing. The Board, however, properly found on the basis of undisputed testimony that an adequate notice was served on Tri-City's attorney. For determining whether there has been a proper demand by a Union to bargain collectively, knowledge gained by an attorney may be imputed to the employer. See NLRB v. Albuquerque Phoenix Express, 368 F.2d 451, 453 (10 Cir. 1966).
The balance of the issues raised were either litigated, e. g., the misrepresentation issue, or litigable, e. g., the dispute over bargaining unit, at the prior hearing. Board policy properly prohibits repeated litigation of factual issues absent some compelling reason, such as discovery of new evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). The only reason offered here, newly discovered evidence in the form of expired Teamster contracts with similar enterprises, was rejected by the Board on the ground that the contracts were available at the time of the prior hearing. Nothing in the record compels us to disagree with that conclusion. Since the record discloses no material factual issues not litigated or litigable at the earlier hearing, the Board could properly dispose of the unfair labor practice charge by summary judgment. Accordingly, we are concerned solely with the question of whether the Board properly certified the Union. Tri-City contends that the Board erred in the underlying representation proceedings in overruling Tri-City's election objections.
Congress has entrusted the Board with a wide degree of discretion in representation proceedings, and our scope of review is limited. NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); Coronet-Western v. NLRB, 518 F.2d 31, 32 (9 Cir. 1975). The party challenging an election has a heavy burden to show that coercion prevented a fair election and to overcome the "presumption that 'ballots cast under the safeguards provided by Board procedure reflect the true desires of the participating employees' ". NLRB v. Sauk Valley Mfg. Co., 486 F.2d 1127, 1130 (9 Cir. 1973), citing NLRB v. Zelrich Co., 344 F.2d 1011, 1015 (5 Cir. 1965). We therefore examine the evidence to determine whether there is substantial evidence in the record as a whole to sustain the Board's findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 95 L.Ed. 930 (1951).
The objections filed by Tri-City on May 30, 1975 alleged that the election should be set aside because (1) the Union made misrepresentations of fact at the election eve meeting, to which Tri-City had no opportunity for reply, and which confused and misled the voters; (2) the Union filed an unfair labor practice charge against the company several days before the election in order to coerce and intimidate it from electioneering; and (3) the Board conducted the election while this unfair labor practice charge was pending, and a Board agent investigated the charge on the day before the election, thereby destroying the laboratory conditions required for an election. Tri-City makes the same contentions in arguing that enforcement should be denied.
At the time of the election on May 23, 1975, Tri-City's drivers were paid on a commission basis, with a guarantee of $160 per week for the first $1,000 of volume and 5 per cent of the excess over $1,000. About three weeks earlier, on April 30, 1975, two master contracts covering commercial laundry deliveries in the Riverside area expired, and the parties were negotiating new contracts. As noted Supra, Tri-City had not been a party to either contract.
The contracts had been of two types "industrial" and "linen". The industrial contract covered drivers handling heavier items such...
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