Prestolite Wire Div. v. N.L.R.B.
| Citation | 592 F.2d 302 |
| Decision Date | 31 January 1979 |
| Docket Number | No. 76-2037,76-2037 |
| Parties | 100 L.R.R.M. (BNA) 2503, 85 Lab.Cas. P 11,078 PRESTOLITE WIRE DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Eugene T. D'Ablemont, Kelley Drye & Warren, New York City, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Robert G. Sewell, N.L.R.B., Washington, D. C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for respondent.
Before EDWARDS, Chief Judge, and WEICK and ENGEL, Circuit Judges.
This matter is before the court on petition of Prestolite Wire Division of Eltra Corporation (Prestolite) to review an order of the National Labor Relations Board issued June 24, 1976. Section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f) (1976). The Board's order is reported at 225 NLRB No. 1 (1976). The Board has cross-petitioned for enforcement of the same order.
On May 28, 1975 the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) filed with the Board a petition for a representation election at Prestolite's plant in Rose City, Michigan. Following approval by the Regional Director of a Stipulation for Certification upon Consent Election, an election was conducted on July 3, 1975 among the company's production and maintenance employees. Of approximately 118 eligible voters, 114 voted, 59 in favor of the union and 55 against union representation.
On July 11, 1975 Prestolite filed objections to the election. The objections, eight in number, are appended to this opinion and concern, Inter alia, alleged threats made by a union organizer, alleged misrepresentation by the union of the operation of Prestolite's bonus plan, claims that the union had falsely represented that it had obtained free dental and eye care in a bargaining contract in one of Prestolite's plants in Bay City, Michigan, and claims that the election itself had been improperly conducted by a Board agent. The objections were supplemented by ten affidavits from voting employees and one affidavit from the employer's director of employee communications, and by certain correspondence from the union which identified the union's "in-plant" organizers, some of whom were alleged to have participated in the misconduct.
An administrative investigation by an NLRB agent followed at which Prestolite made available to the agent eight additional affidavits relating to the same charges and given by Prestolite's supervisors and managers. See 29 C.F.R. § 102.69. While they have not been identified or made available, affidavits were also taken by the Board agents from other employees, organizers and representatives of the union. 1
On September 11, the Regional Director issued a report and recommendation that the objections be overruled in their entirety without a hearing and that the union be certified as exclusive bargaining representative of the employees. On October 2, 1975 Prestolite timely filed with the Board in Washington its 73 exceptions to the report and recommendation. The exceptions referred in great detail to the findings and conclusions in the report and to the affidavits which had been filed with the Board agent.
On January 30, 1976 a three-member panel of the Board certified the UAW as the exclusive representative of the employees in the bargaining unit. The order and certification in paragraph 5 of its findings recited:
The Board has considered the Regional Director's report, the Employer's exceptions and brief, and the Entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Regional Director. (Footnotes omitted.) (Emphasis added.)
Prestolite's subsequent refusal to bargain with the union and the order to bargain which followed frame the issues for judicial review in this court.
In its petition for review Prestolite complains both of the result reached on the merits by the Board and of the procedures employed to reach it, procedures which, it asserts, failed to follow the Board's own rules and resulted in unfairness amounting to a denial of due process.
Prestolite asserts, and the Board does not deny, that the consent election was held pursuant to 29 C.F.R. § 102.62(b):
Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of the employees involved may, with the approval of the regional director, enter into an agreement providing for a waiver of hearing and a consent election leading to a determination by the Board of the facts ascertained after such consent election, if such a determination is necessary. Such agreement shall also include a description of the appropriate bargaining unit, the time and place of holding the election, and the payroll period to be used in determining which employees within the appropriate unit shall be eligible to vote. Such consent election shall be conducted under the direction and supervision of the regional director. The method of conducting such election and the post election procedure shall be consistent with that followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70.
The procedures for the processing of objections to the election or to conduct affecting the results of the election are governed by 29 C.F.R. § 102.69, which provides in pertinent part:
(c) If objections are filed to the conduct of the election or conduct affecting the results of the election, . . . the regional director shall, consistent with the provisions of § 102.69(d), investigate such objections or challenges, or both. If a consent election has been held pursuant to § 102.62(b), the regional director shall prepare and cause to be served on the parties a report on . . . objections, . . . including his recommendations, which report . . . he shall forward to the Board . . ., any party may file with the Board . . . eight copies of exceptions to such report, with supporting brief if desired . . . . Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof together with a copy of any brief filed on the other parties and shall file copies with the regional director. . . . If no exceptions are filed to such report, the Board, upon the expiration of the period for filing such exceptions, may decide the matter forthwith upon the record or may make other disposition of the case. . . .
(d) The action of the regional director in issuing a report on objections . . . following proceedings under § 102.62(b) or § 102.67 . . . may be on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which, in the exercise of his reasonable discretion, he determines may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer. . . .
(f) In a case involving a consent election held pursuant to § 102.62(b), if exceptions are filed, . . . and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record, or may make other disposition of the case. If it appears to the Board that such exceptions raise substantial and material factural (sic) issues, the Board may direct the regional director or other agent of the Board to issue and cause to be served on the parties a notice of hearing on said exceptions before a hearing officer. . . .
Section 102.69(g) describes the record to be transmitted to the Board:
(g) The notice of hearing, motions, rulings, orders, stenographic report of the hearing, Stipulations, exceptions, documentary evidence, together with the objections to the conduct of the election or conduct affecting the results of the election, any report on such objections, any report on challenged ballots, exceptions to any such report, any briefs or other legal memoranda submitted by the parties the decision of the regional director, if any, and the record previously made as described in § 102.68, Shall constitute the record in the case. Materials other than those set out above shall not be a part of the record; except that in a proceeding in which no hearing is held, a party filing exceptions to a regional director's report on objections or challenges, a request for review of a regional director's decision on objections or challenges, or any opposition thereto, may append to its submission to the Board copies of documents it has timely submitted to the regional director and which were not included in the report or decision. Immediately upon issuance of a report on objections or challenges, or both, upon issuance by the regional director of an order transferring the case to the Board, or upon issuance of an order granting a request for review by the Board, The regional director shall transmit the record to the Board. (Emphasis added.)
Prestolite claims that it was not until after the Board's order of January 30, 1976 that it discovered that the Regional Director had not transmitted to the Board any of the 19 affidavits which the company had submitted to the investigating officer, nor, presumably, had he transmitted any of the other materials which had been gathered during the course of the administrative investigation. It therefore appears (and the Board does not deny) that the latter's order of January 30, 1976, did not, as stated therein, include a consideration of "the entire record in this proceeding," but was confined to a consideration of the Regional Director's report and recommendation and of the exceptions filed thereto by the company. This, the company contends, amounts at best to an abdication of the Board's responsibility to review the record made and at worst to...
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