NLRB v. White Knight Manufacturing Company

• Decision Date: 01 March 1973
• Docket Number: No. 72-2030.,72-2030.
• Citation: 474 F.2d 1064
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE KNIGHT MANUFACTURING COMPANY, Respondent.

474 F.2d 1064 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE KNIGHT MANUFACTURING COMPANY, Respondent.

No. 72-2030.

United States Court of Appeals, Fifth Circuit.

March 1, 1973.

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Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., Avrum M. Goldberg, Atty., N. L. R. B., Washington, D. C., for petitioner.

John W. Brahm, Stanley S. Jaspan, Milwaukee, Wis., for respondent.

Before GEWIN, BELL and GODBOLD, Circuit Judges.

GEWIN, Circuit Judge:

This case arises out of a representation election held May 5, 1971 among certain employees of White Knight Manufacturing Company to determine whether they desired to be represented for collective bargaining purposes by Textile Workers Union of America, AFL-CIO. The election was held pursuant to a "stipulation for certification upon consent election", by secret ballot among the employees of a stipulated unit. None of the ballots was challenged. Out of 180 eligible voters, 92 voted for the union and 85 against. Only three eligible persons failed to vote. Following timely objections to the election by the Company, the Regional Director conducted an administrative investigation and recommended that the Union be certified. The Board affirmed, finding that "The Company's exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's . . . recommendations or would require a hearing." The Company thereafter refused to bargain collectively causing the Union to file an unfair labor practice charge with the Board under §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. On motion for summary judgment, the Board ruled that the refusal to bargain violated the Act.¹ Accordingly it ordered the Company to cease and desist from the unlawful conduct found and affirmatively required the Company to bargain collectively with the Union as the employees' exclusive representative. The Board now seeks enforcement of that order and we conclude that enforcement should be granted.

In its objections, White Knight alleged four grounds for setting the election aside,² each one involving threats of physical harm to certain of its employees because of their opposition to the Union campaign. The incidents described were claimed to have destroyed the laboratory conditions necessary to a free and fair election. White Knight now asserts that the Board committed reversible error by refusing to invalidate the election and by failing to direct a hearing on its objections. We reject both of these contentions.

We begin with a discussion of the validity of the Board's order. In reaching a decision on this issue, we must be mindful of the fact that Congress has vested the Board with broad discretion in dealing with matters relating to representation proceedings. Considerable weight, therefore, must be accorded to the Board's findings with judicial review limited to ascertaining only their reasonableness. N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 864 (5th Cir. 1966). Whether this court would reach the same conclusion as the Board is immaterial so long as the Board's finding that the election was conducted fairly is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456, 462 (1951). The decisive factor in such cases is not whether improprieties occurred during the campaign, but rather whether the challenged conduct produced such a climate of tension and coercion that the employees were effectively precluded from making a free choice. N. L. R. B. v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir. 1969). The burden of proof is on the objecting party. As this court observed in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969):

"This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees\' exercise of free choice to such an extent that they materially affected the results of the election."

White Knight initially argues that the Board erred because in reaching its decision it placed an improper reliance on the absence of an agency relationship between the Union and the objectionable conduct. We disagree. Even a cursory reading of the Board decision indicates that a number of other relevant factors were taken into account such as: (1) the Union's prompt action in calming a supporter who had been involved in heated personal disputes with two co-workers because of differences of opinion about the Union; (2) its public disapproval of the use of anonymous phone calls as a means of influencing the outcome of the election; and (3) its repudiation of the use of violence in connection with any of its activities. In our judgment, the lack of Union agency was not given conclusive or disproportionate weight by the Board³ and consequently we must reject White Knight's contention in this regard.

Equally without merit is the argument that the Board failed to consider the cumulative impact of the challenged conduct on the outcome of the election. As the objecting party, it was incumbent upon White Knight to come forward with specific evidence showing that the atmosphere surrounding the campaign was so coercive that the employees were prevented from exercising a free choice. In our opinion, the record is devoid of such evidence. White Knight's objections described a series of incidents which, notwithstanding...