Natter Mfg. Corp. v. N.L.R.B.
| Decision Date | 15 August 1978 |
| Docket Number | No. 75-3730,75-3730 |
| Citation | 580 F.2d 948 |
| Parties | 99 L.R.R.M. (BNA) 2963, 18 Empl. Prac. Dec. P 8835, 84 Lab.Cas. P 10,817 NATTER MANUFACTURING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph Herman (argued), of Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, Cal., for petitioner.
Howard F. Fine, Atty. (argued), Washington, D. C., for respondent.
Petition to Review a Decision of the National Labor Relations Board.
Before WALLACE and SNEED, Circuit Judges, and EAST, * District judge.
Natter Manufacturing Corporation (Natter) petitions for review of the National Labor Relations Board's decision that Natter has violated its statutory duty to bargain in good faith with the certified bargaining representative of its employees. We find Natter's contentions to be unpersuasive and we therefore grant the Board's cross-application for enforcement.
On April 20, 1973, Local 170 of the Sheet Metal Workers' International Association (Union) petitioned the NLRB for certification as the collective bargaining representative of Natter's production and maintenance employees. On April 25, the Board's regional director notified the parties that a representation hearing would be held on May 23, 1973. Two weeks prior to the scheduled hearing, Natter filed with the Board a motion seeking permission to introduce evidence at the hearing of the Union's discriminatory practices. The Board subsequently denied the motion with the express qualification that Natter could reassert this issue following the potential representation election.
At the representation hearing held on May 23, Natter renewed its contention that the issue of the Union's alleged discriminatory practices should be litigated prior to the election. On June 15, the regional director issued his decision directing an election and rejecting Natter's contention that it should be permitted to litigate the discrimination issue prior to the election. Natter subsequently requested the Board to review the regional director's decision. That request was denied on the ground that it "raise(d) no substantial issues warranting review."
On July 13, 1973, the election was conducted; 150 votes were cast for the Union and 151 were cast against the Union. The Union timely filed objections to the conduct of the election. The Union's primary objection was that on the day of the election, certain of Natter's officials had distributed to the voting employees a campaign flyer which contained a substantial, material misrepresentation. The flyer stated in part:
We have been advised the National Labor Relations Board has found Local 170 guilty of five (5) unfair labor practices at Accuride. The Union was found guilty of harassment, intimidation, and coercion toward employees at Accuride.
In fact, the dispute between the Union and the employer referred to in the flyer had been resolved pursuant to a settlement agreement. By its express terms, the agreement did not constitute an admission by the Union that it had engaged in any unfair labor practice. By the same token, the agreement certainly did not constitute an adjudication that the Union had breached its statutory duties.
The Board, agreeing with the Union's claim that Natter's misrepresentation had impermissibly interfered with the fair conduct of the election, set aside the results of the election. 210 N.L.R.B. 118 (1974). Significantly, the Board's ruling was based upon its prior decision in Dubie-Clark Co., 209 N.L.R.B. 217 (1974), in which the Board had set aside election results because of the union's mischaracterization of a settlement agreement as a finding that the employer had committed unfair labor practices. Id. at 218. In so doing, the Board explicitly condemned the misuse or mischaracterization of its documents or processes in order to secure partisan advantage.
At the Board's direction, a second election was held on May 23, 1974, which resulted in the Union receiving a majority of the votes cast. Accordingly, on May 30, Natter moved the Board to disqualify the Union from certification on the grounds that the Union engaged in race and sex-based discrimination. Natter also requested that the Board conduct a hearing on its discrimination claim.
Natter's motion and hearing request were supported primarily by citations to several cases in which various other locals of the Sheet Metal Workers' International, and the International itself, had been found guilty of unlawful discrimination, and various provisions of the International's constitution which allegedly demonstrate the International's control over its locals.
The Board's regional director denied the motion and refused to grant the hearing on the grounds that the International and its locals were legally discrete entities. Therefore, since Natter had made No showing of past or present discrimination on the part of Local 170, Natter had not made out a prima facie showing which would entitle it to a hearing on its claim. The regional director therefore certified the Union. Natter's subsequent request for Board review of the regional director's decision was denied.
Following culmination of the representation proceedings, Natter has steadfastly refused to bargain with the Union. As a result, the Union brought unfair labor practice charges, claiming that Natter's refusal to bargain constitutes a violation of section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). In resistance to the section 8(a)(5) charge, Natter reasserted its claims that the Union engaged in discriminatory practices and that the Board had erred in setting aside the results of the first election. 1
On the General Counsel's motion for summary judgment, the Board rejected Natter's contentions and ruled that Natter had violated its duty to bargain in good faith with its employees' certified representative. 221 N.L.R.B. 13 (1975). The basis of the rejection was that the issues had been previously litigated in the underlying representation case, and that in the absence of newly discovered or previously unavailable evidence, Natter could not relitigate these issues in the present unfair labor practice case. See 29 C.F.R. § 102.67(f); See also NLRB v. Children's Baptist Home, 576 F.2d 256, at 261 n.4 (9th Cir., filed June 9, 1978).
Natter's petition for review raises its contentions that the Board erred in (1) setting aside the results of the first election, and (2) denying Natter a hearing on its allegation that the Union practiced invidious discrimination. We disagree.
In Hollywood Ceramics, 140 N.L.R.B. 221 (1962), the Board explained its policy of setting aside election results when a party's pre-election "misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election." Id. at 224. While the case before us was pending on appeal, however, the Board issued its decision in Shopping Kart Food Market, Inc., 228 N.L.R.B. No. 190 (1977) in which the Board overruled Hollywood Ceramics and announced that it would "no longer set elections aside on the basis of misleading campaign statements." Id., slip op. at 9. Although Natter correctly points out that the Board is applying Shopping Kart retroactively, See Shalom Nursing Home, 230 N.L.R.B. No. 145 (1977), it is clear that Shopping Kart does not control here.
In Shopping Kart, the Board carefully explained that it would continue to set aside election results "in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes. . . ." 228 N.L.R.B. No. 190, slip op. at 9. In subsequent cases, the Board has carefully preserved this distinction between general campaign misstatements, and misrepresentations pertaining to the Board, its documents and processes. See Formco, Inc., 233 N.L.R.B. No. 5 (1977), and Shalom Nursing Home, supra, 230 N.L.R.B. No. 145.
In Formco, the Board considered the consequences of a union's pre-election statement that the employer had been found guilty of unfair labor practices when in fact the employer had signed a settlement agreement containing a nonadmission clause. In setting aside the election, the Board again instructed that "Shopping Kart did not change Board law with regard to improper use of the Board and its processes for election campaign purposes." 233 N.L.R.B. No. 5, slip op. at 3. Therefore, as Formco explains, the Board's decision in Shopping Kart in no way undermined the vitality of its decision in Dubie-Clark.
Of course, the misrepresentations condemned in Formco and Dubie-Clark are essentially identical to the one in question in the case before us. The only remaining question, therefore, is whether, as Natter argues, the Board's differentiation between general election propaganda and misrepresentations pertaining to the Board and its processes is so irrational as to constitute an abuse of discretion. We believe the Board's rule relating to campaign statements which misrepresent the Board's processes is within the Board's "wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees." NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946); Accord, NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1429, 22 L.Ed.2d 709 (1969); Hecla Mining Co. v. NLRB, 564 F.2d 309, 313 (9th Cir. 1977); NLRB v. W. S. Hatch Co., 474 F.2d 558, 560-61 (9th Cir. 1973); Cf. Linden Lumber Div. v. NLRB, 419 U.S. 301, 310, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974) (). We agree with the Board that it has a...
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