National Labor Relations v. Superior of Missouri

• Decision Date: 14 April 2000
• Docket Number: No. 99-3648,99-3648
• Citation: 233 F.3d 547
• Parties: (8th Cir. 2000) NATIONAL LABOR RELATIONS BOARD, PETITIONER, V. SUPERIOR OF MISSOURI, INC., RESPONDENT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 547

233 F.3d 547 (8th Cir. 2000)

NATIONAL LABOR RELATIONS BOARD, PETITIONER,

V.

SUPERIOR OF MISSOURI, INC., RESPONDENT.

No. 99-3648

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 14, 2000

Filed: November 7, 2000

Appeal from the National Labor Relations Board.

[Copyrighted Material Omitted] Before McMILLIAN, Fagg, and Loken, Circuit Judges.

Loken, Circuit Judge.

The National Labor Relations Board petitions to enforce its order compelling Superior of Missouri, Inc., to bargain with Teamsters Local Union No. 682. Superior defends its refusal to bargain on the ground that the Union was improperly certified after a representation election marred by Board and Union misconduct. Superior urges us to revoke the Union's certification and order a new election, or, alternatively, to order the board to conduct a hearing on Superior's objections to the conduct of the election. Concluding that Superior produced sufficient evidence to warrant a hearing, we deny enforcement and remand to the Board.

I. Background

The Union petitioned the Board seeking certification as the exclusive collective bargaining representative of the sixty-nine truck drivers and helpers employed at Superior's Creve Coeur Mill Road facility in St. Louis. See 29 U.S.C. 159(c). The Union and Superior agreed to hold a contested representation election at the facility on Friday, June 19, 1998, between 6:00 and 8:00 a.m. The Board approved that agreement and scheduled the election.

On the morning of June 19, the bargaining-unit employees assembled at the facility before 6:00 a.m. to vote, but the Board agent assigned to oversee the election overslept. Most Superior drivers start their waste-hauling routes before 6:15 a.m., and many do not start from the facility. As 6:00 came and went, the employees' initial impatience turned to dissatisfaction and anger, because the delay promised to prolong their Friday work day. Ken McAfee, Superior's General Manager, held the drivers at the facility until 6:45 a.m. Then, having heard nothing from the Board agent, McAfee released them to begin their routes. Five minutes later, the Board agent telephoned the facility. McAfee advised that the employees had left to start their routes. The Board agent asked whether they could be called back to vote. McAfee said that was not possible. The Board agent "made a comment to the effect that you cannot trust alarm clocks," and the conversation ended.

The Board unilaterally rescheduled the election for the following Friday, June 26, and the Board agent delivered new election notices that did not explain why he had failed to appear on June 19. Before the June 26 election, Superior distributed a letter apologizing to employees for any inconvenience caused by the botched June 19 election, stating the company was not at fault, and urging employees to vote in the rescheduled election. The employees were never told why the Board agent had failed to show up for the first election.

The rescheduled election was held on June 26. The employees voted 41-20 in favor of the Union. Superior filed timely objections with the Board's Regional Director. See 29 C.F.R. 102.69. Superior alleged that the election should be set aside because of the Board agent's conduct on June 19, because the Board unilaterally rescheduled the election, and because a Union representative improperly offered to waive union initiation fees for employees who voted for the Union. Superior submitted sworn affidavits from both bargaining unit and non-unit employees supporting its allegations. The Regional Director investigated informally, without holding a hearing, and then issued a report recommending that the Board overrule Superior's objections and certify the Union. Superior filed exceptions, urging the Board to set aside the election or to order a hearing on Superior's objections. The Board adopted the Regional Director's report and certified the Union. See Superior of Missouri, Inc., 327 N.L.R.B. No. 53, 1998 WL 850415 (Nov. 30, 1998).

A certification order is not appealable, so an employer may obtain judicial review only by refusing to bargain with the union and then asserting its election objections as defenses to the ensuing unfair labor practice charge. See Boire v. Greyhound Corp., 376 U.S. 473, 477 (1964); 29 U.S.C. 159(d). Superior followed that procedure here, refusing to bargain with Local 682 and then defending the General Counsel's unfair labor practice charge by attacking the validity of the representation election. The Board granted the General Counsel's motion for summary judgment, declining to re-examine its certification decision and holding that Superior's refusal to bargain with a certified union violated 29 U.S.C. 158(a)(1) and (5). See Superior of Missouri, Inc., 327 N.L.R.B. No. 197, 1999 WL 195531 (Mar. 31, 1999). The Board now petitions this court to enforce its order to bargain.

II. Standard of Review

In opposing enforcement, Superior argues that we should either set aside the election or remand for a hearing on its objections. We consider only the latter issue. The Board's Regional Director must investigate a party's timely objections to a representation election. As we have frequently explained, 29 C.F.R. 102.69(d) requires that the Regional Director order an evidentiary hearing "if the objecting party makes a prima facie showing of substantial and material facts which, if true, warrant setting aside the election." Rosewood Care Ctr. of Joliet, Inc. v. NLRB, 83 F.3d 1028, 1031 (8th Cir. 1996); see NLRB v. Monark Boat Co., 713 F.2d 355, 356 (8th Cir. 1983); Beaird-Poulan Div., Emerson Elec. Co. v. NLRB, 571 F.2d 432, 434 (8th Cir. 1978). To warrant a hearing, the objecting party must state specific objections supported by an offer of proof. If the objector satisfies that burden and raises substantial and material issues of fact, the Board "may not reject the evidence and sidestep the need for an evidentiary hearing on the basis of ex parte investigations." Swing Staging, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir. 1993). We review the Board's decision not to hold a hearing de novo. See Overnite Transp. Co. v. NLRB, 105 F.3d 1241, 1245 (8th Cir. 1997).

III. The Board Agent's Conduct and the Rescheduled Election

Superior objected that the Board agent's failure to attend the scheduled June 19 election "destroyed the laboratory conditions required by the Board for the conduct of its elections" and gave rise to anti-employer prejudice that may have affected the outcome of the rescheduled election. In support of these contentions, Superior submitted sworn affidavits by several employees. General Manager Ken McAfee recounted what happened on the morning of June 19, averring that the employees became noticeably upset and appeared to blame Superior when they could not start work on time because the Board agent failed to appear. Debbie Crosson (a non- bargaining unit employee) averred that one driver told her a rumor had spread among the bargaining unit employees prior to June 26 that "the Company had paid the Labor Board off so they would not show up on June 19 to hold the election." The driver, Melissa Seay, told Crosson that "several drivers" who had planned to vote against the Union voted for the Union on June 26 because they blamed Superior for holding them at the facility on June 19. Similarly, driver Kevin Calcagno averred that he had heard a rumor "from more than one person" that Superior "never called the federal government to show up so we could vote in the election."

Without holding a hearing, the Regional Director recommended that these objections be overruled because "the parties agreed to reschedule the election to June 26," Superior distributed a letter denying responsibility for what happened on June 19, and employees "were well aware of the reason the election had to be rescheduled." The first reason is an error of fact -- it is undisputed that the Board unilaterally rescheduled the meeting to June 26. ¹ The third reason is without factual support in this record and is contradicted by Superior's affidavits. The second reason is an apparent attempt to bring this case within the authority of Alladin Plastics, Inc.,182 N.L.R.B. 64 (1970). In Alladin, as in this case, a Board agent missed an election and rescheduled it for a few days later, and rumors flew that the employer had paid off the Board. The Board overruled the employer's objections, but on very different facts:

The Employer had ample opportunity to reply to the rumor and, in fact, did so repeatedly. There was no claim that the [Union] originated, authorized, or approved the circulation of the rumor. On the contrary, the [Union] gave prompt and wide dissemination of a bulletin to all employees wherein it was prominently stated that the Employer, as well as the [Union], was not responsible for the election's delay. . . . Therefore, as both parties took vigorous and forthright measures to inform employees as to the true reason for the election's postponement, we cannot find the existence of the rumor sufficiently prejudicial to justify sustaining the objection.

Id. at 64. By contrast, in this case the Union made no effort to advise employees of the Board agent's mistake. Without a hearing, we cannot know whether Union organizers or supporters helped fuel the rumor to Superior's disadvantage. Thus, the Regional Director's reasons for not holding a hearing are unpersuasive.

On appeal, the Board adopted the Regional Director's recommendation to overrule these objections without a hearing. The Board first ruled that the Regional Director has discretion to unilaterally reschedule an election, citing only Alladin, a case that did not discuss the issue. The Board then rejected the objections on the merits because "there is no evidence that the [Union] was the source of the alleged rumor, and [Superior] had the opportunity to respond to it." This reasoning, too, is unpersuasive.

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