NLRB v. SKELLY OIL CO.(KANSAS CITY., MO., SKELGAS DMB), 72-1151.

• Decision Date: 21 February 1973
• Docket Number: No. 72-1151.,72-1151.
• Citation: 473 F.2d 1079
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SKELLY OIL CO. (KANSAS CITY, MISSOURI, SKELGAS DIRECT MARKETING BRANCH), Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

473 F.2d 1079 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SKELLY OIL CO. (KANSAS CITY, MISSOURI, SKELGAS DIRECT MARKETING BRANCH), Respondent.

No. 72-1151.

United States Court of Appeals, Eighth Circuit.

Submitted November 14, 1972.

Decided February 21, 1973.

Joseph A. Oertel, Atty., N.L.R.B., Washington, D. C., for petitioner.

Frank B. Wolfe, III, Tulsa, Okl., for respondent.

Before MATTHES, Chief Judge, MEHAFFY, Circuit Judge, and VAN PELT, Senior District Judge.^*

VAN PELT, Senior District Judge.

This case involves an application by the National Labor Relations Board Board pursuant to § 10(e) of the National Labor Relations Act Act for enforcement of its August 10, 1971 order issued against the Skelly Oil Co. Employer. The Board found that the Employer had violated § 8(a) (5) and (1) of the Act by refusing to negotiate with the Automotive, Petroleum and Allied Industries, Local No. 552 Union on request after the Union was certified as exclusive bargaining agent. The order required that the Employer (1) cease and desist from refusing to bargain collectively with the Union and from interfering with, restraining or coercing employees in the exercise of their rights under the Act; (2) bargain on request with the Union and post appropriate notices.

The representative election in question was held on November 12, 1969. Twelve employees voted for the Union, nine voted against, with one vote challenged. The challenge was unresolved. On November 18, 1969, the Employer filed timely objections alleging that agents of the Union (1) were engaged in electioneering activities in and about the polling place, and (2) had made certain material misrepresentations to employees.

An investigation of these objections was conducted under the direction and supervision of the Regional Director. Witnesses named by Employer's counsel as possessing information on the alleged objectionable conduct were interviewed and affidavits obtained. In addition, the other persons in the voting unit were interviewed and affidavits were obtained from all but one of the employees who voted in the election.

The Regional Director made the following findings: Truckdriver Walter Duffy, a son-in-law of Union representative McGinness, was a Union supporter. He had been a Union observer in prior elections, and was considered for such a position in the election in question. There is a conflict as to whether Duffy was chosen observer and then replaced when he arrived late or whether he was considered for the post and then someone else chosen when Duffy was found to be unavailable. On the eve of the election a rumor began that a new employee had been hired at a rate of $3.30 or $3.35 per hour, whereas the normal starting rate was $2.72 per hour. It was unclear as to who started this rumor. Duffy admitted that on the morning of the election he talked to two other employees at a drinking fountain near the polling booth, asked them what they were making, and when they refused to tell him, stated that the Employer had hired a "new boy" at $3.30 or $3.35 per hour; one of the employees did not recall talking to Duffy, but had heard this rumor. A branch manager of Employer claimed that on the night preceding the election Duffy had used the truck radio to solicit attendance by another employee at a Union meeting; Duffy and the employee denied this. The Regional Director did not resolve the issue of credibility saying even if the event occurred he "would be unable to conclude that this activity would make Duffy an agent of the Union."

There was a claim that this rumor was disseminated at a Union meeting prior to the election. The Director found that there had been such a meeting attended by seven employees, all of whom gave affidavits. Of these, two stated that the subject was brought up in a "bull session" before McGinness, who was to conduct the meeting; arrived; two did not hear the subject mentioned at the meeting; two did not recall when the subject was brought up; and one employee stated that McGinness was present but had told the men that there was no way anyone could prove what the new man was making. McGinness could not recall who brought the subject up and Mayo, another Union representative, could not remember it being discussed.

In regard to the contention that the misrepresentation of such a material fact (wages), regardless of the responsibility therefor, had a significant impact on the election and prevented the employees from exercising an uncoerced or free choice, the Director considered the affidavits of the employees who had voted and their statements concerning their knowledge of the rumor and its effect on their vote.

C. B. Gallant, labor relations manager for the Employer, and Employee A stated that Employee A told Gallant that Employee B had called him prior to the election and told him that he (Employee B) was angry concerning the wage rumor and was unsure whether he would vote for the Union or not. Employee A told him that he should make up his own mind about whether to vote, but that the $3.35 wage did not make sense to him and he did not believe it. Employee B then stated that he was new and things were so confused that maybe he should stay out of the election. Employee A also stated that he learned from an assistant branch manager, before election day,¹ that the rumor was untrue and so informed Employee B. Employee B denied having heard the rumor and stated that while he did not vote in the election nothing prevented him from voting.

Richard Reece, a branch manager, stated that on November 20, 1969, he talked to Employee C and C told him he guessed Reece knew he had voted for the Union. After Reece told C that that was his business, C replied that he was mad at the time but was feeling better. Reece stated that he later found out C had talked to C. B. Gallant about the wage rumor. Gallant stated that on November 20, 1969, he asked C if he had heard the rumor about the wage rate, and C told him he had heard about it at the Union meeting the night before the election, and there was considerable unhappiness about paying a new man more than the other men were getting. C stated that Gallant had talked to him after the election and asked if he had heard about the $3.30 per hour rate. C said he told Gallant he had heard about it the night before the election.

Glen Fortney, assistant branch manager, stated that shortly after the vote had ended Employee D asked why the Employer would hire somebody at $3.30 per hour, and that Employee E joined in and asked, "What is the Employer doing trying to get the Union in?" Employee E told him that the men at one of the stores were talking about the man being hired at $3.30 per hour. Fortney then called Reece, found that the rumor was untrue, and informed the men. Both Employee D and Employee E stated that they did not hear the rumor until after they had voted.

Of the ten employees who testified that they heard the rumor prior to the election, nine stated the rumor did not influence their vote. One employee was not interrogated concerning his subjective feelings by the Board and did not volunteer any subjective feelings concerning the rumor.

In view of this evidence, the Director made the following findings: (1) ". . . I am unable to conclude that the evidence establishes that Duffy was an agent of the Union for any purpose. Hence, the Board's rationale as set forth in Star Expansion Industries Corporation . . . does not apply to the instant matter . . . ." (2) ". . . I conclude that the evidence does not establish that Union representatives or agents disseminated the misrepresentation at the Union meeting held the night before the election, and hence the Union cannot be held responsible for disseminating the misrepresentation. The Union did nothing to give credence to the rumor or further its circulation. Rather, the Union's business agent, McGinness, sought to dispel the rumor by stating at the Union meeting that the alleged starting rate for the new employee could not be proved." (3) ". . . I find that the misrepresentation in the instant matter does not constitute grounds to set aside the election under either the Board's customary test or the Court's test concerning employees' subjective reactions. Where misrepresentation emanates, as here, from employees who are obviously not in possession of intimate knowledge of the true facts, less significance will be attached to the misrepresentation in evaluating its probable impact on the election."

Therefore, the Regional Director recommended that the objections be overruled and that the Union be certified.

Pursuant to 29 C.F.R. § 102.69(c), the Employer filed exceptions to the Regional Director's report with the Board. The Board adopted the Regional Director's findings and recommendations, and thereby certified the Union pursuant to § 9(d) of the Act.²

The Employer refused to bargain with the certified representative and on April 20, 1971, the Regional Director commenced a § 10 unfair labor practice proceeding against the Employer, alleging violations of §§ 8(a) (1) and 8(a) (5) due to the refusal to bargain.³ The proceeding was transferred to the Board and, on a motion for summary judgment, a notice to show cause why summary judgment should not be granted was issued. The Board followed its own rule that representation questions decided in a prior § 9 proceeding could not be relitigated in a subsequent unfair labor practice proceeding,⁴ and granted the motion for summary judgment. This enforcement proceeding followed.

In General Shoe Corp., 77 N.L.R.B. 124, 127 (1948), the Board expressed the "laboratory conditions" test for consideration of election proceedings: "In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees." In order to measure any particular factual...