NLRB v. Realist, Inc.
| Decision Date | 31 March 1964 |
| Docket Number | No. 14281.,14281. |
| Citation | 328 F.2d 840 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REALIST, INC., Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., for petitioner.
Herbert P. Wiedemann, Milwaukee, Wis., for respondent.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.
Rehearing Denied En Banc March 31, 1964.
The National Labor Relations Board requests that its order issued May 13, 1963, be enforced against respondent, Realist, Inc., a manufacturer of cameras and other optical goods, located in Berlin, Wisconsin. The order directs the company to bargain with the Allied Industrial Workers of America, AFL-CIO, and to desist from engaging in unfair labor practices within the meaning of section 8(a) (5) and (1) of the National Labor Relations Act. The Board's decision is reported at 142 N.L.R.B. No. 66 (1963). A summary of the facts follows.
In June, 1962, the union filed a petition with the Board for a representation election among the company's production and maintenance employees. The company and the union thereafter agreed to an election which the Board scheduled for July 17, 1962.
On July 6, the company increased the wages of forty-four of the 119 employees. The president of the company on July 9 spoke to the employees in groups of eight to ten in his office. The day before the election he addressed all plant employees in a thirty-minute speech. We incorporate that part of the speech which we deem pertinent to one of the issues presented.1
The majority of employees voted against the union in the election. Thereupon, the union filed objections with the Board contending that the company had interfered with the employees' freedom of choice.
The Board's regional director conducted an investigation and then recommended the election be set aside. He found that the company had interfered with the employees' rights to a free election by (1) granting pre-election wage increases to certain employees in a manner calculated to influence the outcome of the election, (2) anti-union talks by the president to small groups in his office, (3) the president's speech to employees which was calculated to engender fear of economic loss if the union won the election, and (4) the president's misrepresentation to the employees that the union had caused the closing of another plant in Wisconsin through its unreasonable contract demands.
The Board adopted the regional director's report and ordered a new election.
At the second election in December, 1962, the majority of the employees voted for the union, and the Board certified the union as the collective bargaining representative of the company's employees. The company, however, refused to bargain with the union contending that the first election had been improperly set aside, that the second election was contrary to law,2 and that the certification was void.
The union then filed the instant charge, alleging that the company had violated section 8(a) (5) and (1) of the act. The trial examiner concluded that the company had violated the act by refusing to bargain with the union and by such refusal it had interfered with and coerced its employees in the exercise of rights guaranteed by section 7 within the meaning of section 8(a) (1). The Board affirmed.
Respondent contends that the Board abused its discretion in ordering a new election because its action was unreasonable and arbitrary. First, it says that the wage increases granted in June, 1962 were formulated under its merit review system and were initiated before it had knowledge of the election. The company argues that it should have been afforded a hearing either by the regional director or by the trial examiner in order to prove these facts. Second, respondent says that the speech made by the company president should not have been considered by the Board; but even if considered, it was within the protective provisions of section 8(c) of the act and was free of misrepresentations. Finally, respondent says that the meetings of the president with groups of employees were not coercive and did not justify the Board's setting aside the election.
If any one of the grounds upon which the Board based its action was reasonable, the Board was warranted in setting aside the election. We have concluded that the Board could reasonably find that the speech by the company president interfered with the employees' freedom of choice so as to require a second election; therefore, we will not discuss the other contentions. However, if there had been no speech and we had considered these issues, a different result might have been reached.
Before we discuss the president's speech, we must dispose of respondent's preliminary contention that the regional director had no right to consider the speech because the union had not included it in its objections. Respondent argues that by allowing consideration of the speech the Board ignored its own regulation.3 It also argues that the Board vacillates in considering objections; that whenever the Board elects to exclude untimely objections, it refers to its requirement of timeliness; whenever it elects to rely upon untimely objections, it explains that post-election investigations are not limited to the issues raised by the parties.
Respondent, however, fails to distinguish two facets of a regional director's post-election investigation. The director may properly decline to consider objections of the parties that are not timely brought to his attention. But this limitation does not preclude his consideration of matters which he may choose to investigate independently, regardless of the fact they may be included in the objections.
We are of the opinion that many of the president's remarks, even when considered in the context of the entire speech, were calculated to create fear in the minds of the employees that their jobs were in jeopardy should the union win the election. The reference to "unionized plants moving out of the State of Wisconsin for a better place to operate" and to the shutting down of the Peerless Woolen...
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