NLRB v. Sauk Valley Manufacturing Co., Inc.

• Decision Date: 29 October 1973
• Docket Number: No. 72-1569.,72-1569.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAUK VALLEY MANUFACTURING CO., INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.2d 1127 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAUK VALLEY MANUFACTURING CO., INC., Respondent.

No. 72-1569.

United States Court of Appeals, Ninth Circuit.

October 29, 1973.

COPYRIGHT MATERIAL OMITTED

Paul J. Spielberg (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, San Francisco, Cal., Elliott Moore, Steven R. Semler, NLRB, Washington, D. C., for petitioner.

John W. Holmdahl (argued), Holmdahl & Ross, Oakland, Cal., Allen W. Teagle (argued), Nancy L. Ober, Littler, Mendelson & Fastiff, San Francisco, Cal., for respondent.

Before HAMLIN, ALDRICH^* and HUFSTEDLER, Circuit Judges.

OPINION

HAMLIN, Circuit Judge:

This case is before us upon application of the National Labor Relations Board (Board), petitioner, pursuant to section 10(e) of the National Labor Relations Act (the Act), as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. for enforcement of its order issued against the Sauk Valley Manufacturing Company (Company), respondent, on January 31, 1972.¹ The Board has found the Company in violation of section 8(a)(1) and (5) of the Act by its refusal to bargain collectively with the Union,² subsequent to the latter's certification by the Board as the exclusive bargaining representative of the Company's employees, following election proceedings. We grant enforcement.

In November, 1970, the Union filed a representation petition with the Board, seeking certification as the exclusive representative of the Company's production and maintenance employees. Pursuant to a directive by the Regional Director, a secret ballot election was held among unit employees on April 8 and 9, 1971, at the Company's place of business.³

The election resulted in a vote of 24 to 8 in favor of the Union, with one ballot challenged. The Company filed timely objections to the election, alleging that numerous material misrepresentations of fact and procedural irregularities on the Union's part prejudicially affected the election outcome.

In June, 1971, subsequent to an administrative investigation where the parties were allowed to submit evidence, the Regional Director concluded that the Company's objections were without merit, and certified that the Union had been properly elected by a majority of employees. No evidentiary hearing was held on the objections. In August, 1971, the Board denied the Company's requested review.

The Company declined to bargain with the Union, in order to obtain judicial review of the Board's actions. Subsequent to the filing by the Union with the Board of charges alleging the Company's failure to recognize or bargain with it as the certified bargaining representative of the Company's employees, the Regional Director issued a complaint, accusing the Company of section 8(a)(1) and (5) violations. The Company admitted its refusal to bargain, but denied the representative status of the Union and the commission of unfair labor practices, again alleging prejudicial improprieties in the conduct of the election.

In December, 1971, the Trial Examiner granted the Board's prayer for summary judgment, concluding that the Company's refusal to bargain constituted section 8(a)(1) and (5) violations. On review, the Board affirmed and issued an order requiring the Company to cease and desist from the unfair labor practices and, affirmatively, to bargain collectively upon request with the Union, and to post appropriate notices.

Substantive Issues

The Company raises numerous issues purportedly warranting our denial of the Board's enforcement petition. Our review of the substantive issues, however, is preceded by a brief examination of the scope of our review.

As we recently noted, "the courts review election conduct to determine whether it inhibited the employees' free choice in selecting their bargaining representatives." N.L.R.B. v. G. K. Turner Associates, 457 F.2d 484, 487 (9 Cir. 1972). The applicable standard of review is, however, circumscribed. It is well established that "Congress has entrusted the Board with a wide discretion in conducting and supervising elections." N.L.R.B. v. W. S. Hatch Co., Inc., 474 F.2d 558, 561 (9 Cir. 1973); N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); N.L.R. B. v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940). Accordingly, the party challenging the election results "carries a heavy burden in charging that * * * coercion prevented a fair election," Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F.2d 933, 942 (5 Cir. 1959), for evidence must be furnished overcoming the presumption that "ballots cast under the safeguards provided by Board procedure reflect the true desires of the participating employees." N.L.R.B. v. Zelrich Co., 344 F.2d 1011, 1015 (5 Cir. 1965). See also General Shoe Corp., 77 N.L.R.B. 124, 126 (1968).

In International Tel. & Tel. Corp. v. N.L.R.B., 294 F.2d 393, 395 (9 Cir. 1961), we explained the rationale supporting restrictive judicial review in this area:

"As established by Congress, the NLRB is in a particularly good position to expedite the process of choosing representatives and thereby promoting collective agreements fairly reflective of the wishes of a majority of workers. Repeated appellate court litigation without allowing considerable discretion on the part of the NLRB thwarts this policy by nurturing continuing uncertainty and argument between the parties where decision — even occasionally erroneous decision — tends to disperse attention."

We examine the Company's substantive arguments mindful, therefore, of the limited nature of our review.

The Company initially argues that "the Union, by its agents and representatives, categorically promised employees that they would receive specific benefits, including a Union contract, higher wages, sick leave and a medical and dental plan, if the Union won the election." In purportive support of this charge, the Company presented the affidavits of two employees.

Employee Edwards stated:

"I was told by other employees who had been to Union meetings that if the Union won the election we would have a Union contract and that the Union had promised this and that the Union promised better pay, sick leave, medical and dental plans if the employees voted in the Union."

Employee Caldwell stated:

"I was told by other employees that if the Union won the election, we would have a Union contract, there would be better pay, a medical and dental plan. I also had the impression myself from what I heard, that there would be a Union contract."

The Board has traditionally exercised restraint in setting aside representative elections on claims of inaccurate union propaganda. Elections will be set aside

"* * * only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election." Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962). See also Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953).

This court has adopted the Board's test:

"We have held that an election will be set aside only where one party has misrepresented material facts, the other had no opportunity to reply, and the resulting distorted presentation significantly impaired the election process." N.L.R.B. v. G. K. Turner Associates, supra, 457 F.2d at 487, citing N.L.R.B. v. Winchell Processing Corp., 451 F.2d 306 (9 Cir. 1971). See also Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525, 533-534 (9 Cir. 1968).

Under the applicable test, noted supra, we are unable to conclude that the statements contained in the affidavits of employees Caldwell and Edwards constituted grounds for voiding the election.

Initially, we note that these statements cannot be labeled material misrepresentation. G. K. Turner, supra, or substantial departures from the truth, Hollywood Ceramics, supra. Unions exist for the purpose, inter alia, of securing higher pay, increased benefits, and collective bargaining for its membership. And most representations to this effect are indigenous to any representation election. Indeed, courts have consistently condoned a certain degree of inaccuracy and ambiguity in election campaigning propaganda, recognizing that "prattle rather than precision is the dominating characteristic of election publicity * * *." Olson Rug Company v. N.L.R.B., 260 F.2d 255, 257 (7 Cir. 1958). See e. g. N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26, 30-31 (5 Cir. 1969); Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 119-120 (1 Cir. 1967); Wilson Athletic Goods Mfg. Co. v. N.L. R.B., 164 F.2d 637, 639-640 (7 Cir. 1947).⁴

In addition to failing to show that the statements in issue constituted material misrepresentations, the Company has failed to attribute these allegations to union representatives. Neither Caldwell nor Edwards asserted that they were told of the alleged benefits by union officials. The statements are therefore patently hearsay, and their credibility as the official union position is highly questionable. The Board, with judicial concurrence, has long accorded less weight to conduct which, as here, is attributable to neither the union nor the employer.⁵ Orleans Manufacturing Co., 120 NLRB 630, 633 (1958); Allied Plywood Corp., 122 NLRB 959, 961 (1959). See N.L.R.B. v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (8 Cir. 1972) and cases cited therein.

The Company makes several additional objections, none of which we find meritorious.

The Company alleges that the Board's form "Notice of Election" confused employees as to their rights not to join a union. The notice incorrectly implies that an employee has an absolute right to decline to join a union, when in fact this right...