NLRB v. Red Bird Foods, Inc.

• Decision Date: 09 September 1968
• Docket Number: No. 16565.,16565.
• Citation: 399 F.2d 600
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED BIRD FOODS, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

399 F.2d 600 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED BIRD FOODS, INC., Respondent.

No. 16565.

United States Court of Appeals Seventh Circuit.

July 30, 1968.

Rehearing Denied September 9, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Frank H. Itkin and Peter Kinzler, Attys., N.L.R.B., Washington, D. C., for petitioner.

Harry P. Dees, Arthur R. Donovan, Joseph A. Yocum, Evansville, Ind., Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel, for respondent.

Before KNOCH, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

KILEY, Circuit Judge.

The National Labor Relations Board has petitioned this court to enforce its order finding respondent Red Bird Foods, Inc., guilty of violating Sec. 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by refusing to bargain with Retail Clerks Union, Local 536.¹ The Board ordered, inter alia, Red Bird to bargain with the Union on request. We enforce the order.

Red Bird operates a retail food store in Normal, Illinois, with forty-three employees. On January 15, 1965, the Union filed a representation petition with the Board seeking certification as bargaining agent for the thirty-eight Red Bird employees in the grocery department. An election was held and the Union won by a vote of 17-16. Red Bird filed objections, claiming that Union misconduct influenced the vote. The Regional Director investigated the charge of misconduct and overruled the objection based on that charge. The Director rejected the Red Bird argument that pre-election Union literature misrepresented the facts and required that the election results be set aside. Red Bird filed exceptions which the Board overruled in their entirety. The Board certified the Union as representative of Red Bird's grocery department employees.

The Union thereafter requested recognition and bargaining, but Red Bird refused the requests. Charges were filed and a complaint issued alleging the 8(a) (5) and (1) violations. Red Bird answered admitting the refusal to bargain, but denied the validity of the certification of the Union. The General Counsel filed a motion for summary judgment and the Examiner ordered Red Bird to show cause why the judgment should not be entered. The Examiner concluded that the issues raised by the answer had already been decided in the representation proceeding before the Director. He saw no need of a hearing on the summary judgment motion in the absence of newly discovered evidence not available at the time of the representation proceeding. The judgment was entered, and the Board affirmed. The order sought to be enforced followed.

The issue before us is whether the Board abused its discretion by certifying the Union.

Red Bird attacks the validity of the Board's certification of the Union on the ground that Union misrepresentations in the campaign were timed to prevent Red Bird from replying and were designed to, and did, influence the votes of employees. It argues that the misrepresentations, in view of the close vote, should compel setting aside the election and preclude enforcement of the order to bargain. The Board contends that its refusal to set aside the election was well within its discretion. Rockwell Mfg. Co., Kearney Div. v. NLRB, 7 Cir., 330 F.2d 795, 796.

Red Bird places its principal reliance on its allegation that a Union letter of February 10 together with its enclosures misled part-time employees into believing that the Union had an insurance plan covering them in effect in union shops in the Bloomington-Normal area.

The February letter stated, inter alia, "We * * * have $5,000.00 insurance for part time employees in our union." The letter further stated that "a copy of your contract and insurance program that our union stores have," is enclosed. A complete brochure of Plan I covering full-time employees was enclosed, but only two pages of the brochure covering Plan II covering part-time employees was included. These two pages were captioned Schedule of Benefits. The letter also enclosed a copy of the Union contract. The insurance plan for full-time employees was in effect in union stores in northern Illinois, including the Bloomington-Normal area, but the part-time plan, while it was in effect in many parts of northern Illinois, was not in effect in the Bloomington-Normal area.

Red Bird argues that a "reasonable employee" would read the letter and brochures as meaning that Union contracts in existence in the area provided insurance for part-time employees. It contends that the incomplete brochure was designed to give false information to, and must have misled, voters at the election. Finally, Red Bird argues that the statement in the February 10 letter, that a full-time employee is one who works twenty-six or more hours a week, was misleading.

The Director found that the failure to send the...