NLRB v. Golden Age Beverage Company

Decision Date07 July 1969
Docket NumberNo. 26286.,26286.
Citation415 F.2d 26
CourtU.S. Court of Appeals — Fifth Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Frank H. Itkin, Julius Rosenbaum, Attys., N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N.L.R.B., Houston, Tex., for petitioner.

Glenn L. Greene, Jr., W. Reynolds Allen, Miami, Fla., for respondent; Fowler, White, Collins, Gillen, Humkey & Trenam, Miami, Fla., of counsel.

Before THORNBERRY and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.

CASSIBRY, District Judge:

This case is before the Court on the petition of the National Labor Relations Board (Board) for enforcement of its order that respondent Golden Age Beverage Company (Company) bargain with a Teamster's local union1 (Union) certified by the Board after a representation election as the exclusive collective bargaining agent of certain of the Company's employees. As a defense to its refusal to bargain with the Union, the Company questions the fairness of the representation election and the refusal of the Board to grant a hearing to consider the Company's objections. We must resolve whether the Board, by overruling the Company's objections to the representation election without a hearing, acted within its wide degree of discretion and consistently with the requirements of procedural due process.

Because representation proceedings are not directly reviewable by the courts, this case reaches us by the circuitous procedure where an employer, in order to secure judicial review of his objections to a representation election, refuses to bargain with a certified union, thus committing an unfair labor practice in violation of Section 8(a) (5) and (1) of the Labor Management Relations Act, 29 U.S.C. § 158(a) (1), (5) (1964), and causing the Board to issue an order to bargain requiring judicial enforcement. United States Rubber Co. v. N.L.R.B., 373 F.2d 602, 603, n. 3 (5th Cir.1967). The facts adhere to the usual pattern in such cases.

Following a consent election won by the Union by a vote of 11 to 5, the Company filed objections to employee and union conduct allegedly interfering with and coercing the employees to such an extent that they could not exercise a free choice in the election. It was charged that the Union (1) promised unusually high wage rates, (2) prompted employees to engage in unlawful electioneering at the polling area, (3) misrepresented that all employees would have to be Union members to retain their jobs, and (4) threatened some employees with physical violence if they did not vote for the Union.2 Pursuant to Section 102.69(c) of the Board's Rules and Regulations, 29 C.F.R. § 102.69(c), the Regional Director conducted an ex parte administrative investigation of the Company's objections. Employee affidavits were taken and both parties were permitted time to submit all pertinent evidence. In his report to the Board detailing the Company's objections, the supporting and opposing evidence, and his findings of fact and conclusions of law, the Regional Director found no merit in the objections and recommended that they be overruled. The Company thereafter filed exceptions to the Director's report with the Board, contending that the Board should order the Regional Director to conduct a hearing. Finding that the objections raise "no material or substantial issues of fact or law", the Board denied a hearing, adopted the Director's report, and certified the Union as the exclusive bargaining representative for the employees in the unit.

Notwithstanding the certification by the Board, the Company refused to recognize and bargain with the Union. Unfair labor practice charges were filed with the Board, and a complaint issued charging a refusal to bargain in violation of the Act. The Company's defense was predicated upon the unlawful certification of the Union because of the failure of the Board to order a new election, or at the very least, to direct a hearing to resolve the factual issues raised by the objections. General Counsel for the Board moved for summary judgment on the pleadings, noting that the Company's objections had been previously litigated in the representation proceedings. The Company opposed the motion and requested that a hearing be held on the complaint, at which time it "could prove numerous other illegal and improper acts" by the Union. None of these acts, however, were specified; nor was there any indication that such evidence was newly discovered or previously unavailable. In accordance with the Board's rule that, absent newly discovered evidence, the Board's disposition of the representation matters is the law of the case, the Trial Examiner denied a hearing. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251, 1263 (1941); Collins & Aikman Corp., 160 N.L.R.B. 1750 (1966). All material issues having been decided by the Board, the Trial Examiner granted the General Counsel's motion for summary judgment holding the Company's refusal to bargain a violation of Section 8(a) (5) and (1) of the Act. The Board adopted his determination and ordered the Company to bargain with the Union. Enforcement of the order is sought in this proceeding.

The Company asserts three grounds, any one of which, if valid, would prevent enforcement of the order to bargain. First, it is contended that the objections raised require that the election be set aside, or second, that at least a hearing be held to resolve factual disputes. Third, the Company urges that the Board erred in refusing to include as part of the record on appeal the employees' affidavits taken by the Board's investigator in the course of the administrative investigation, or to allow the Company access to those affidavits.

We shall first consider whether the Board should have set aside the representation election because of the conduct alleged in the Company's objections.

Certain well established principles guide this inquiry. Most important is the wide discretion Congress has entrusted to the Board in its conduct and supervision of elections, N.L.R.B. v. Huntsville Manufacturing Co., 203 F.2d 430, 434 (5th Cir.1953), and the considerable weight which must therefore be accorded the Board's findings, with judicial review narrowly limited to ascertaining only their reasonableness. N.L. R.B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 864 (5th Cir. 1966). As this Court said in Pepperell Manufacturing Co. v. N.L.R.B., 403 F.2d 520 (5th Cir.1968), cert. denied, 395 U. S. 922, 89 S.Ct. 1774, 23 L.Ed.2d 238 (May 26, 1969), "Determination whether union representation election was fairly or unfairly conducted and should be set aside is primarily for the National Labor Relations Board. Thus, the only question presented to the Courts in an election review is whether the Board has reasonably exercised its discretion." 403 F.2d at 522, citing Neuhoff Brothers, Packers, Inc. v. N.L.R.B., 362 F.2d 611 (5th Cir.1967). Because it is for the Board to decide if the conduct charged reasonably tends to inferfere with the employees' free choice, N.L.R. B. v. Dallas City Packing Co., 251 F.2d 663 (5th Cir.1958), this Court, in reviewing this decision, "must be slow to overrule a discretionary determination by the Board." Neuhoff Brothers, Packers, Inc. v. N.L.R.B., supra 362 F.2d at 616. Whether this Court would reach the same conclusion as the Board from the conflicting evidence is immaterial, so long as the Board's finding that the election was fairly conducted is supported by substantial evidence in the record considered as a whole. N.L.R.B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 496, 84 L.Ed. 704, 716 (1940); Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456, 462 (1951); Anchor Manufacturing Company v. N.L.R. B., 300 F.2d 301, 303 (5th Cir.1962).

Further, in reviewing the Board's disposition of the Company's objections to the election, it "must be kept in mind that the burden is on the party objecting to the conduct of the representation election to prove that there has been prejudice to the fairness of the election." Southwestern Portland Cement Co. v. N.L.R.B., 407 F.2d 131, 134 (5th Cir.1969), pet. cert. filed, 37 U.S.L.W. 3444 (May 14, 1969). See also N.L.R.B. v. Ortronix, Inc., 380 F.2d 737, 740 (5th Cir.1967); N.L.R.B. v. O.K. Van Storage, Inc., 297 F.2d 74, 75 (5th Cir.1961). This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election. Cf. Southwestern Portland Cement Co. v. N.L.R.B., supra 407 F.2d at 134; Anchor Manufacturing Co. v. N.L.R.B., supra 300 F.2d at 303.

With these guidelines, we proceed to consider the Company's objections and whether the Board should have set aside the election.

In his Report and Recommendations on Objections, the Regional Director summarized the evidence presented by the Company in support of its first objection charging the Union with promising unusually high wage rates as follows:

"* * * the Company presented two employee witnesses, one of whom stated that should the Union win the election, there would be some changes in pay and that the union would get time and a half for the employees for Saturday work. The other employee stated that a fellow employee told him that should the union come in the employees could expect to draw time and a half for all over 40 hours, and double time for working Saturdays and holidays."

Concluding that these statements fell within the category of customary and legally unobjectionable preelection propaganda used by...

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