NLRB v. Visual Educom, Incorporated
| Decision Date | 19 September 1973 |
| Docket Number | No. 72-2002.,72-2002. |
| Citation | 486 F.2d 639 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VISUAL EDUCOM, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Peter G. Nash, Gen. Counsel, Joseph C. Thackery, Atty., N. L. R. B., Washington, D. C., for petitioner.
James J. Crowley, Jr., Newark, N. J., for respondent.
Before CLARK, Associate Justice,* KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.**
The National Labor Relations Board (Board) petitions for enforcement of its order, pursuant to 10(e) of the Act, 29 U.S.C. § 151 et seq., granting summary judgment that, inter alia, Visual Educom, Incorporated (Respondent), of Michigan City, Indiana, upon request, bargain collectively with the Union1 with respect to "rates of pay, wages, hours and other terms and conditions of employment." We order enforcement.
On August 20, 1971 the Union filed a representation petition with the Board seeking to represent a unit2 of the Respondent's employees. A consent election was held on October 8, 1971, and resulted in 55 votes for, and 49 against, the Union. Eleven ballots were challenged. Pursuant to stipulation, three of the challenges were sustained and the remaining eight ballots were opened and counted. The final tally was 57 for, and 55 against, the Union.
The Respondent filed two timely objections to the election. The Regional Director conducted an ex parte investigation of the objections and found that there was no warrant for setting aside the election. The Respondent filed exceptions, supported by affidavits, and requested a hearing to resolve factual issues. A three member panel of the Board adopted the Regional Director's holdings, and on March 10, 1972 certified the Union. Thereafter the Union requested the Respondent to bargain, and it refused. Subsequently, on April 13, 1972, the Regional Director filed a complaint "alleging" the Respondent's unfair labor practice under § 8(a)(1) and (5) of the Act. The Respondent answered and the General Counsel then moved for summary judgment, asserting that all the issues raised in the answer had previously been litigated. The Board panel transferred the proceedings to the Board, which found that "all factual and legal issues raised had been determined . . . by a prior Board determination," and ordered the Respondent to bargain.
The Respondent opposed entry of summary judgment on the ground that material issues of fact existed. Its position is that having filed exceptions to the Regional Director's report, it was entitled to an evidentiary hearing on its objections.
The question before us is whether there are material issues of fact needing decision and whether denial of a hearing invalidated the Union certification as bargaining representative. The Respondent has the burden of persuasion. NLRB v. Red Bird Foods, Inc., 399 F.2d 600, 602 (7th Cir. 1968). It contends that the objections as a whole, examined in the light of the evidence supporting its objections, disclose factual misrepresentations which were substantial departures from truth, made so near the election as to prevent the Respondent from effectively refuting, or to allow the employees to independently evaluate, Union misrepresentations. For these reasons it contends the impact of these misrepresentations reasonably could have unduly inhibited the free choice of the employees in the election. The possible impact is said to be especially crucial in view of the close vote. The Respondent concedes that "if" the certification is proper the bargaining order should be enforced.
The consent election was scheduled in September 1971, to be held on October 8, 1971. The Respondent began its campaign with a speech on August 25 and continued with letters to its employees on September 15, 22 and 30, and another speech on October 6. These communications emphasized how management was working to represent the best interests of the employees. The campaign material stressed that the Respondent had overcome financial problems and was on the way to profits and to providing stable employment with competitive wages and benefits. The Respondent stated it knew of "no union that kept a plant open for the employees" under similar economic conditions.
Additionally, Respondent made the following representations: Union campaign promises meant nothing; a wage contract had to be negotiated; the only certainty if the Union won was monthly Union dues; employees "may be subject to threat or coercion" which should be reported to the Board; employees' votes are secret and can be cast safely; signed cards "mean nothing;" and no employee would lose a job because of his vote.
In subsequent campaign material Respondent asserted: if the Union won, employees would have to pay at least $6.50 per month dues; many unions had increased dues "again and again;" employees may be subject to "special fees and assessments," "can be threatened" with suspension from the Union for non-attendance at meetings, and forced to picket at some other company; the Respondent was "strongly opposed" to unionization, was "100% non-union" but if a majority of employees voted for the Union there would be no inequities among employees and the Respondent would bargain in good faith; and, finally, in slack periods the Respondent would have to move people around, but Union security rules often blocked this "need of agility."
At a Union meeting on October 6, 1971 Lawson, a Union representative, spoke to the "30-40" employees in attendance. His statements at that meeting are the subject of the two objections filed by the Respondent with the Regional Director. The objections are that the Union falsely represented that the Respondent "was financially able to increase wages, that . . . it made a profit of four cents on every dollar" it spent for employees' insurance; and that it misrepresented that "specific companies" were part of the Respondent and were unionized.
The Respondent supported its objections with the names of seven witnesses, all employees,3 who attended the Union meeting. Each of these employees, after the meeting, asked the Respondent about the truth of Lawson's statements. The Respondent provided the Regional Director with a summary of anticipated testimony of the witnesses.
The Regional Director took testimony from the Respondent's witnesses and his report set forth the substance of their testimony relevant to Lawson's alleged misrepresentation concerning management profit from its employee insurance plan. The witnesses all agreed that Lawson talked about the Respondent's employee insurance payments and, although expressing it differently, each indicated the thrust of Lawson's statement was that the Respondent was profiting from the employee insurance plan.4 The report recites the substance of Lawson's testimony: employees should not pay any cost of insurance; it was to the Respondent's benefit to pay insurance premiums because of tax considerations; and the Respondent could deduct insurance premiums as an "operating" expense.
We disagree with the Regional Director's appraisal of the testimony of the five witnesses. He describes the testimony of B and C as "grossly conflicting" and of A and E as "conflicting." It is true: Witness A did not "remember too much," "didn't pay too much attention" and did not "remember his explanation." Witnesses C and D, respectively, said they "didn't understand what Lawson was saying," and "didn't understand what he was trying to explain." And E said "I can't remember too much about the meeting. . . ." Nevertheless, each of the five stated Lawson talked about insurance and gave the impression that the Respondent benefited by paying employees' insurance premiums.
Lawson's testimony is not contrary to the witness' impressions. Also he and the witnesses agreed that what he said was prompted by a question "from the floor." And both he and they agreed he used a blackboard in explanation.
The Respondent's second objection was aimed at Lawson's statement that plants owned by the Respondent in the East were unionized. This statement was made in response to a Respondent campaign letter of September 30, 1971 that it was 100% non-union. Here again the discussion...
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...into question the election's validity. See NLRB v. Southern Health Corp., 514 F.2d 1121, 1125 (7th Cir.1975); NLRB v. Visual Educom, Inc., 486 F.2d 639, 643 (7th Cir.1973). The company also objects to several other instances of alleged misrepresentations: a statement, first made two weeks b......
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