NATIONAL LABOR RELATIONS BOARD v. DEAN FOODS COMPANY, 19496.
| Decision Date | 20 January 1970 |
| Docket Number | No. 19496.,19496. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DEAN FOODS COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Angelo Arcadipane, N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Charles R. Both, Attys., N.L.R.B., Washington, D. C., on brief.
Richard A. Brackhahn, Memphis, Tenn., for respondent; Fowler, Brackhahn & Young, Newell N. Fowler, Memphis, Tenn., on brief.
Before EDWARDS, PECK and McCREE, Circuit Judges.
In this action petitioner seeks enforcement of its order reported at 171 NLRB No. 60, pursuant to the provisions of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq. There is also before the Court a cross-petition of the respondent asking that the order of the Board be reviewed and set aside.
The Board found that the respondent (hereinafter usually the "Company") violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the union here involved which had been certified pursuant to an election. The Company admits its refusal to bargain, challenging the certification on the basis of the invalidity of the election. The issue here presented is whether in overruling the Company's objections to the election the Board acted arbitrarily and capriciously and abused the discretion delegated to it by Congress in matters relating to representation election proceedings. N.L.R.B. v. Waterman SS. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940); N.L.R.B. v. S. H. Kress & Co., 194 F.2d 444, 446 (6th Cir. 1952). Where a party seeks to overturn the results of such an election, the burden is on that party to show that the election was not fairly conducted (N.L.R.B. v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 5 L.Ed. 2d 455 (1961)), and thus more narrowly stated the issue here is whether the Company has sustained its burden of proving the invalidity of the election in question.
Some 48 days prior to the election the Company issued a memorandum to "All Supervisory Personnel" announcing a liberalization of vacation schedules for all non-union salaried employees, and specifically directing that the content of the memorandum remain confidential "since this change in our vacation plan could have an adverse effect on labor negotiations." Although this document apparently was available to the union at or soon after its promulgation, the union did not circulate it until two days before the election. On the next day it placed a copy in each employee's time card slot, but since only seven employees worked that day it is contended that the balance of the fifty employees did not see the document, upon which appeared at the top "THIS IS WHAT THE CO. THINKS OF US", until election day. Whatever issues may have existed concerning the manner in which the memorandum initially became available to the union become immaterial in view of the statement...
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