Nat'l Labor Rel. v. Gormac Custom Mfg

• Decision Date: 20 July 1999
• Docket Number: AFL-CIO-CL,I,No. 98-5830,98-5830
• Citation: 190 F.3d 742
• Parties: (6th Cir. 1999) National Labor Relations Board, Petitioner, United Steelworkers of America,ntervenor, v. Gormac Custom Manufacturing, Inc., Respondent. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 742

190 F.3d 742 (6th Cir. 1999)

National Labor Relations Board, Petitioner, United Steelworkers of America, AFL-CIO-CLC, Intervenor, v. Gormac Custom Manufacturing, Inc., Respondent.

No. 98-5830

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: July 20, 1999

Decided and Filed: September 3, 1999

On Application for Enforcement of an Order of the National Labor Relations Board, No. 8-CA-29599

[Copyrighted Material Omitted]

Richard A. Cohen, David Habenstreit, National Labor Relations Board, Office of General Counsel, Aileen A. Armstrong, Dep. Asso. Gen. Counsel, John D. Burgoyne, Peter Winkler, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Meredith L. Jason, National Labor Relations Board, Washington, D.C., for Petitioner.

David R. Jury, UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Pittsburgh, Pennsylvania, for Intervenor.

John T. Billick, Seth P. Briskin, BELKIN, BILLICK & HARROLD, Cleveland, Ohio, for Respondent.

Before: WELLFORD, SILER, and GILMAN, Circuit Judges.

WELLFORD, J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. 18-20), delivered a separate dissenting opinion.

OPINION

HARRY W. WELLFORD, Circuit Judge.

The National Labor Relations Board petitions this court pursuant to 29 U.S.C. § 160(e) for enforcement of its order requiring Gormac Custom Manufacturing, Inc. ("Gormac") to bargain. The NLRB ruled that the company violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§158(a)(1) and (5), by refusing to bargain with the United Steelworkers of America ("USWA"), the elected and certified bargaining representative of the company's designated unit of employees. ¹ Gormac attacks the validity of the certification and contends that it was entitled to an evidentiary hearing on its objections to the representation election. ² For the following reasons, we REVERSE the NLRB's decision and REMAND for an evidentiary hearing.

I.

In an election to determine whether the USWA would collectively represent a proposed bargaining unit of employees of respondent Gormac, held May 21, 1996, consisting of forty-five eligible voters, nineteen cast ballots for USWA, sixteen against, and four ballots were challenged. ³ Two things are apparent from this outcome: (1) a switch of several votes would affect the outcome of this close contest, and (2) for some unexplained reason, six of forty-five eligible voters did not vote--some thirteen percent. Had just half of these absentees voted, the outcome might have been different.

The basis of Gormac's objection to the election and its results is set out in the NLRB regional director's report dated July 25, 1996:

[D]uring the lunch period on June 14, 1996, within three hours of the start of the election, the Petitioner [union] distributed a leaflet⁴ to voters which listed the names and purported signatures of 31 Gormac employees who expressed their intent to vote in favor of the Union. The Employer contends that the document misrepresented the Union's majority status, created a false impression of union support and violated the confidentiality of the showing of interest. The Employer further contends that the Petitioner's use of employee signatures was unauthorized, the signatures were used in an [sic] deceptive manner, which was tantamount to forgery, and that the employer had insufficient opportunity to respond to the leaflet.

In support of its objections the Employer submitted affidavits of employees who testified that, a few hours prior to the election, the Petitioner distributed a leaflet which contained their names and signatures. The document was captioned "We're the majority! We're voting yes!" The three employees who submitted affidavits stated that, although their names were on the union leaflet, they had voted "no" in the election and they never authorized the Petitioner to use their names in conjunction with pro-union leaflets.

The leaflet contains the following language [in lower case and in lighter print]: "*The names listed on this leaflet represent Gormac workers who authorized the USWA to use their names on union leaflets."

JA 35 (footnote omitted.) USWA denied the charges and any misrepresentation, according to the regional director. Because the authorization form used by USWA at the outset of its organizing campaign contained, among other things, language that USWA might "sign" the employee's "name to union leaflets," the regional director deemed the Gormac objection to be "without merit."

There is no evidence in the appendix that the union itself responded to Gormac's objection. Despite respondent's objections to the regional director's report, the NLRB decided, without a hearing or apparently any response by USWA, and with reference to the brief employee "authorization" cards, ⁵ that the objections were meritless. The NLRB decided that "even if oral misrepresentations were made to these employees regarding the confidentiality of their signatures," the use made by the union in publishing the late hour leaflet at issue did not constitute a violation of the Board's Midland National Life Ins. Co. rule, 263 NLRB 127, 131 (1982). ⁶ It was not a pervasive deception nor misrepresentation "artful enough to interfere" with a "fair and free choice," according to the Board. See Dayton Hudson Dept. Store v. NLRB, 987 F.2d 359, 366 (6th Cir. 1993).

In due course, Gormac has brought an appeal to this court for the NLRB's refusal to afford it a hearing on the fairness and legality of the election in light of the last-hour's circulation by the union of the flyer in question which contained the purported signatures of thirty-one employees, a substantial majority, and an indication that they would be voting "yes" for the USWA. As indicated above, the Board held that even if oral misrepresentations about confidentiality were made by the union to employees to obtain signatures on the "authorization" cards, this constituted no violation of the Act.

II.

A.

Gormac argues that the regional director and/or the NLRB should have held an evidentiary hearing on its objections to the election. It contends that the affidavits of the three employees, which averred, contrary to the public indications of the union leaflet, that they were assured by union representatives that the cards they signed would be kept "confidential." Furthermore, these three employees stated that they had not signed the leaflet in question and/or that their purported "yes" signatures were forgeries. The regional director, without any hearing, stated that the union denied (in a fashion unknown so far as the record reflects) that "it misrepresented its purpose or intent in any manner." The three employees specifically also set forth in their respective affidavits that when they were persuaded to sign the "petition" during the early days of the organizing campaign, they were "told that the petition would only be used to obtain a union representation election." (emphasis added.) USWA responds in its intervenor's brief to this court that "[i]t is well-settled, however, that the Board and this court will refrain from evaluating the content of campaign communication....[T]he Board and this court assume that an employee is capable of weighing a document, its content, and its source." (Br., pp. 10, 11). Since the union apparently did not file a response to Gormac's objections, the Board assumed the truthfulness of these sworn assertions by the three employees, but ultimately found that as a matter of law, these allegations did not support a hearing, much less an overturning of the election.

We review the Board's denial of an evidentiary hearing for an abuse of discretion. See NLRB v. Shrader's, Inc., 928 F.2d 194 (6th Cir. 1991). Recently, in Office Depot, Inc. v. NLRB, 184 F.3d 506, 510 (6th Cir. Aug 2, 1999), we held that "only when objecting parties show the existence of 'substantial and material factual issues'" is a hearing required, citing 29 C.F.R. § 102.69(d) and Tennessee Packers v. Frosty Morn Div., 379 F.2d 172, 177-78 (6th Cir. 1967). See also NLRB v. Basic Wire Prods., 516 F.2d 261, 263-64 (6th Cir. 1975). However, "[o]ur mission is not to rubber-stamp the [Board's] order, no questions asked." Shrader's, 928 F.2d at 198. "Instead, in the course of determining whether the Board has abused the discretion entrusted to it by Congress to adjudicate representation disputes fairly, we must satisfy ourselves that the Board's order is the product of procedures which are fundamentally fair." Id.

In determining whether the allegations by the three employees demonstrate the existence of a "substantial and material factual issue," we must look to the circumstances in which we have previously overturned union elections or granted evidentiary hearings. We first note that "[a] party seeking to overturn the results of a representation election bears 'the burden of showing that the election was not conducted fairly,'" see Maremont, 177 F.3d at 577 (quoting NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1180 (6th Cir. 1988)), and that "[i]n order to satisfy the burden, the objecting party must demonstrate . . . 'unlawful conduct which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election.'" Id. (quoting Shrader's, Inc., 928 F.2d at 196). It is well-settled that in cases where "no forgery can be proved, but where the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and where their right to a free and fair choice will be affected,"a new election is warranted. Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984), cert. denied, 469 U.S. 1208 (1985)(emphasis added).

In Hub Plastics v. NLRB, 52 F.3d 608, 612 (6th Cir. 1995), another case where there was no Board hearing on the employer challenges, we expressed therein a particular concern with "the manner of the misre...