NLRB v. DIT-MCO INCORPORATED

• Decision Date: 30 June 1970
• Docket Number: No. 19794.,19794.
• Citation: 428 F.2d 775
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIT-MCO INCORPORATED, Xebec Corporation, Xebec Corporation DIT-MCO Electronics Division, Brooks Research, Inc., a Subsidiary of Xebee Corporation, Brooks Research and Manufacturing Company, a Subsidiary of Xebec Corporation, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 775 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIT-MCO INCORPORATED, Xebec Corporation, Xebec Corporation DIT-MCO Electronics Division, Brooks Research, Inc., a Subsidiary of Xebee Corporation, Brooks Research and Manufacturing Company, a Subsidiary of Xebec Corporation, Respondents.

No. 19794.

United States Court of Appeals, Eighth Circuit.

June 30, 1970.

Sanford H. Fisher, Atty., N.L.R.B., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., N.L.R.B., were on the brief and reply brief.

Dick H. Woods, of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for respondents; Earl J. Engle, and Stephen P. Dees, Kansas City, Mo., on the brief.

Before MEHAFFY, HEANEY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

The employer, now operating as Brooks Research and Manufacturing, Inc., a subsidiary of Xebec Corporation, admits refusing to recognize or bargain with the Union (U.A.W., AFL-CIO, Local 710). The Board determined that the employer had violated § 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (5) (1)) by this recalcitrance. The employer seeks to justify its action on the basis that the Union does not lawfully represent its employees, citing three reasons. (1) The employees of DIT-MCO validly rejected union representation on an initial election which the Board erroneously set aside without a plenary hearing for a violation of the Peerless Plywood (twenty-four hour) doctrine. (2) The Union used coercive tactics in winning the second election, an election which the employer challenged and which the Board erroneously refused to set aside. (3) The second election, even if valid, has no binding effect on the present employer who claims not to be a successor to DIT-MCO.

The Board examined and rejected these contentions in a decision and order dated June 17, 1968, reported at 171 N.L.R.B. No. 178. The Board now petitions us pursuant to § 10(e) of the Act (29 U.S.C. § 160(e)) for enforcement of its order requiring the employer to bargain with the Union. We find substantial evidence on the record as a whole supporting the Board's finding that the employer violated § 8(a) (5) of the Act by refusing to bargain with the certified representative of its employees, and we grant enforcement of the order.

The historical facts span a period of more than three years between January 11, 1965, the date of the first election, and the Board's decision of June 17, 1968. We chronologically examine each issue and its factual background.

I. THE FIRST ELECTION

The Union initially sought to organize approximately eighty-eight production and maintenance employees of a Kansas City, Missouri, manufacturer of electrical testing equipment operating under the firm name DIT-MCO Incorporated. The employees rejected the Union by a vote of forty-one to thirty-five, but the Union protested that result claiming unfair employer tactics interfered with the election.

The Regional Director investigated and upheld three of the six grounds of the Union's challenge and recommended another election. The employer excepted to this report. The Board, without holding a plenary hearing as requested by the employer, adopted the Regional Director's finding that the employer violated the Board's rule which bans election speeches on company time to assembled employees within twenty-four hours of the scheduled election and ordered a second ballot. See Peerless Plywood, 107 N.L.R.B. 427 (1953).¹

The Regional Director reported that a supervisor had called a meeting of approximately ten employees immediately preceding their voting and solicited their questions. In his answers, the supervisor discussed "efforts of unionization upon the employees' working conditions". This report to the Board contained no other information concerning the actual content of the supervisor's discussion with his crew. The respondent employer conceded the accuracy of the report, but urged an exception to its probative force contending that the supervisor merely advised the group that the company would give no "automatic" wage increases during negotiations with the Union. The employer further noted that the supervisor's crew was subject only to merit wage increases. From these circumstances, the employer argued that an expression of the supervisor's personal, legal opinion influenced no employee and constituted no violation of Peerless Plywood. The employer offered to present testimony in support of its views.

These matters submitted in the employer's exceptions to the Regional Director's report warranted no plenary hearing on the Peerless Plywood issue. The employer's concession affirming the supervisor's discussion of possible adverse consequences of unionization with a significant percentage of employees, ten of the seventy-six who voted, establishes, at least facially, a violation of the Peerless Plywood rule:

Employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election. Violation of this rule will cause the election to be set aside whenever valid objections are filed. Peerless Plywood, supra, 107 N.L.R.B. at 429.

See also Honeywell, Inc., 162 N.L.R.B. 323 (1966). Cf. Great Atlantic & Pacific Tea Co., 111 N.L.R.B. 623 (1955). The employer did not dispute the essential facts which establish the Peerless Plywood violation, but sought to rebut the underlying inference that the proscribed speech impaired any worker's free choice in the first election. Peerless Plywood, however, announces an irrebuttable rule of policy and a showing that the employer's electioneering proved ineffective constitutes a legally irrelevant matter of fact.

Both parties cite Intertype Company v. N.L.R.B., 401 F.2d 41 (4th Cir. 1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969), as illustrative of cases enunciating the general rule. We quote from the opinion authored by Judge Sobeloff:

This court has held, however, that "there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to a determination of whether NLRB election results are to be accepted for purposes of certification." NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4 Cir. 1967). * * * Since time is often a critical factor in election cases, NLRB v. Sun Drug Co., 359 F.2d 408, 414 (3 Cir. 1966), it is essential that representation petitions be processed expeditiously with a view to holding the election as soon after the filing of the petition as is reasonably possible. Thus, to insist that the Board conduct a plenary hearing for every objection raised during representation proceedings would, by encouraging dissatisfied parties to engage in this dilatory tactic, prevent the prompt disposition of election cases. Consequently, the courts have upheld the Board\'s practice of conducting administrative investigations when it appears that the factual issues involved are not of such magnitude that they can be resolved only after a full hearing. 401 F.2d at 44.

In accord, Southwestern Portland Cement Co. v. N.L.R.B., 407 F.2d 131, 135 (5th Cir.), cert. denied, 396 U.S. 820, 90 S.Ct. 59, 24 L.Ed.2d 71 (1969); N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). Cf. N.L.R.B. v. Lord Baltimore Press, Inc., 370 F.2d 397, 401 (8th Cir. 1966). Consequently, the employer's additional showing raises no factual head-on clash of conflicting evidence nor dictates any necessity for a plenary hearing. The Board acted appropriately in setting aside the first election.

II. THE SECOND ELECTION

Contrary to the results in the first election, the Union, on May 27, 1965, won the second election by a vote of thirty-six to thirty-two. The employer, objecting to these results, contended the Union victory flowed from its use of coercive techniques upon the employees. After the Regional Director recommended a rejection of the challenge, the Board ordered a plenary hearing. The employer's challenge centered around remarks of a union activist to her fellow employees, which the employer characterized as constituting an express promise to waive Union initiation fees upon a Union victory for those joining the Union before the election.² The employer found support for its contention in a finding made by the Board's Hearing Officer that a plant employee delivering Union authorization cards to fellow employees stated that those signing cards before the election need not pay an initiation fee if the Union won. In the context made, the Hearing Officer determined these remarks to be inconsequential and affording an inadequate basis to draw any concluusion that improper union activity had coerced or impaired the workers' freedom of choice guaranteed by § 7 of the Act (29 U.S.C. § 157). The employer urged the Board to reverse these recommendations on the basis of the Lobue Bros. precedent, 109 N.L.R.B. 1182 (1954), and opinions of the First Circuit in N.L.R.B. v. Gorbea, Perez & Morell, 328 F.2d 679 (1964), and of the Sixth Circuit in N.L.R.B. v. Gilmore Industries, Inc., 341 F.2d 240 (1965). The Board responded by distinguishing the Lobue facts and overruling its precedent. In doing so, the Board reviewed its rulings both preceding³ and following⁴ the Lobue decision and concluded:

We are now of the opinion that no real distinction exists between a situation where the union offers to waive or reduce the initiation fees, but nothing is said about the election results, and one where, as in Lobue, the waiver is expressly conditioned on the outcome of the election. For, whether expressly told so or not, an employee must recognize that as a practical matter the waived or reduced initiation fee

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