NLRB v. Difco Laboratories, Inc., 17315.

• Decision Date: 20 February 1968
• Docket Number: No. 17315.,17315.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIFCO LABORATORIES, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 663 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIFCO LABORATORIES, INC., Respondent.

No. 17315.

United States Court of Appeals Sixth Circuit.

February 20, 1968.

Allison Brown, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Nancy M. Sherman, Leonard M. Wagman, Attys., N. L. R. B., Washington, D. C., on the brief), for petitioner.

Frederick B. Schwarze, Detroit, Mich. (Leonard A. Keller, Frederick B. Schwarze, Detroit, Mich., on the brief), for respondent.

Before O'SULLIVAN and McCREE, Circuit Judges, and WEINMAN, District Judge.^*

McCREE, Circuit Judge.

This case is before us on a petition by the National Labor Relations Board for enforcement of an order affirming its trial examiner's summary determination that Difco Laboratories, Inc., a manufacturer of biological materials and supplies, unlawfully refused to bargain with the representative¹ of two different units of its employees, in violation of sections 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 8(a) (1), 8(a) (5). The decision and order of the Board are reported at 154 NLRB No. 75. Difco contends that, in two previous representation cases, the Board erred in determining the appropriateness and composition of the units involved here, and that the Board further erred in failing to conduct a hearing on Difco's objections to the election held in one of the representation cases.

In July, 1964, the union filed a representation petition seeking certification as bargaining representative of a unit consisting of Difco's tissue culture laboratory (Department 35) employees. At a hearing held on the petition, the parties stipulated that the facts concerning the Department 35 employees were the same as those found in a 1960 representation proceeding. The 1960 proceeding is reported in Difco Laboratories, Inc., 129 NLRB 887. In the 1960 proceeding, the United Automobile, Aircraft and Agricultural Implement Workers of America (UAW) sought to represent the Department 35 employees as part of a unit of technical employees. The Board determined, however, that the Department 35 employees were not technical employees but were a residual group of production employees which could be added to a unit of production employees already represented by the UAW. The Board directed an election to determine whether the Department 35 employees desired to be added to the existing production unit, and the union lost.

In the July, 1964 proceeding, over the objection of the employer that the Department 35 employees should be added to the existing production unit, the Regional Director found that the UAW no longer claimed an interest in representing these employees, and held that the employees constituted a residual production unit which could appropriately be represented by the union here involved. An election was directed. Difco sought Board review of the Regional Director's decision and direction of election on the grounds that the director had departed from Board precedent, had based his determination upon the extent of union organization in violation of Section 9(c) (5) of the Act, 29 U.S.C. § 159(c) (5), and had improperly fractionalized an integrated unit. Review was denied, and the union won the election which was held on September 18, 1964.

Difco filed objections to the election, contending that "the employees were not given the free and untrammeled opportunity to vote under the so called laboratory conditions required by the Board" for the following four reasons:

1. That notwithstanding the fact that the Board\'s Decision and Direction of Election dated August 24, 1964, and the Notice of Election issued September 11, 1964, which was posted on September 14, 1964, stated that those eligible to vote were the employees of the Tissue Culture Laboratory (Department 35), the Union and its representatives misrepresented to employees in other departments and laboratories that they were eligible to vote. As a result and in defiance of instructions that they were to remain at their work, such ineligible employees gathered in a group at the entrance to the voting place shortly before the election period opened at 4 p. m. and thereby created a scene of the greatest confusion and disorder. Such ineligible employees then crowded into the election area and remained there until all of them had voted and been challenged. As a result, many of the employees who where eligible to vote were frightened and confused and deprived of their opportunity to vote calmly and rationally.

2. That the Board\'s Notice of Election was issued on September 11, 1964, and received by the Employer on September 14, 1964. No preliminary instructions had been issued with regard to election procedures, including the settling of the list of eligible voters. On September 15, 1964, the Employer received a letter from the Board stating that a payroll list for the period ending Friday, August 14, 1964, should be sent to the offices of the Board for inspection by the Union on the day preceding the election. On September 16, 1964, the Employer\'s attorney sent the Board a list, by regular mail with postage prepaid, with a letter of explanation as to the differences between the list produced at the hearing on August 14, 1964, and the list reflecting the payroll period ending Friday, August 14, 1964. So far as is known to the undersigned, no effort was made by the Board or by the Union to resolve the questions raised by the discrepancies between the two lists. The brief period of time allowed between the sending of the Notice of Election and the holding of the election itself, and the failure of the Board and the Union to attempt to resolve questions of eligibility of voters, contributed to the confusion and misunderstanding of the employees and to the creation of the disturbance which occurred immediately prior to and during the election as described above.

3. That on the day of the election, the Union and its representatives circulated a rumor, widely believed by the employees throughout the plant, that if the Union failed to win the election, all of the employees in Department 35, the Tissue Culture Laboratory, would be discharged and that accordingly the only protection for their jobs was to vote the Union in as their representative.

4. That the election is void because the unit established by the Decision and Direction of Election dated August 24, 1964, is erroneous for the reasons stated in the Employer\'s Request for Review dated August 28, 1964, and filed with the Board.

A hearing was requested on these objections, but the Regional Director chose to consider them through an administrative investigation. He stated in his supplemental decision that "All parties were afforded full opportunity to be heard, to produce witnesses, and to submit evidence bearing on the issues." On the basis of his investigation, the Regional Director concluded, with regard to the first three objections, that if any confusion existed, it could not be attributed to actions of the union, and that, in any event, the employees were not denied the free exercise of their franchise. With regard to the fourth objection, the Regional Director concluded that the appropriateness of the unit had already been considered by the Board, which had denied review of the unit determination, and could not be considered as an objection to the election. Difco requested review by the Board of the Regional Director's decision on the election objections "for the reasons stated in the...