Randall, Burkart/Randall Div. of Textron, Inc. v. N.L.R.B., 79-1065

• Decision Date: 22 January 1981
• Docket Number: No. 79-1065,79-1065
• Citation: 638 F.2d 957
• Parties: 106 L.R.R.M. (BNA) 2395, 90 Lab.Cas. P 12,542 RANDALL, BURKART/RANDALL DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 957

638 F.2d 957

106 L.R.R.M. (BNA) 2395, 90 Lab.Cas. P 12,542

RANDALL, BURKART/RANDALL DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 79-1065.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1980.

Decided Jan. 22, 1981.

Michael W. Hawkins, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Andrew Tranovich and Jerrold Wohlgemuth, Washington, D.C., Raymond A. Jacobson, Director, Region 26, N.L.R.B., Memphis, Tenn., for respondent.

Before KEITH and MERRITT, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

MERRITT, Circuit Judge.

This case concerns objections of petitioner Randall, Burkart/Randall Division of Textron, Inc. (Randall) to various aspects of a decertification election held in its Blytheville, Arkansas plant. In September and early October 1977 the union representing the employees at the plant engaged in a strike because of its inability to negotiate a new collective bargaining agreement. Randall hired replacement workers, and outbursts of violence occurred during the strike. On October 21, 1977, five days after the strike was settled, an employee petitioned for decertification of the union as the bargaining representative at the plant. At that time the union represented the two units of employees at the plant the tool and die unit with eighteen employees, and the production and maintenance unit with approximately 700 employees. Pursuant to a Stipulation for Certification upon Consent of Election approved by the Regional Director of the National Labor Relations Board, the election was held on November 16, 1977. The union lost representation of the tool and die unit but won the production and maintenance unit by a vote of 333 to 285, with 69 eligible voters not casting ballots. Randall filed six objections several days later, and after investigation in December 1977 the Regional Director overruled the objections in their entirety. In March 1978, after Randall filed exceptions to the Regional Director's decision, the Board ordered hearings concerning two of Randall's original objections and adopted the Regional Director's decision overruling the other four. In June 1978 after a hearing, the Hearing Officer recommended that the two objections be overruled and the union be certified. In August the Board adopted the Hearing Officer's findings and certified the union.

Randall refused to bargain upon request from the union and was then charged with engaging in unfair labor practices in violation of the National Labor Relations Act. In January 1979 the NLRB granted summary judgment against Randall, stating that it would not relitigate issues raised in a prior representation proceeding absent special circumstances or newly discovered evidence. The Board issued an order requiring Randall to bargain with the union. Randall seeks judicial review of the order, pursuant to 29 U.S.C. § 160(f), and the Board has filed a cross-application for enforcement of its order under 29 U.S.C. § 160(e). This court has jurisdiction because Randall's main place of business is in Cincinnati. 29 U.S.C. § 160(f).

We begin by recognizing that the NLRB has been entrusted with a broad range of discretion in supervising representation elections and establishing their procedures. Thus, generally the role of a reviewing court is limited to determining whether that discretion has been abused and whether the Board's findings are reasonable. Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974); NLRB v. Tennessee Packers, Inc., 379 F.2d 172, 180 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). The party here Randall that seeks to overturn an election bears the heavy burden of demonstrating that it was not fairly conducted. Harlan # 4 Coal Co., supra, at 120; NLRB v. Bostik Div., USM Corp., 517 F.2d 971, 975 (6th Cir. 1975).

Randall's appeal rests upon three of its original objections numbers one, two, and six. We have no trouble in upholding the Board's decision concerning objection two, in which Randall contends that union agents engaged in campaign activities on the day of the election in the "no-electioneering" zone at Randall's plant. Such activities have been considered violations of NLRB rules of a magnitude requiring the vacating of election results. Michem, Inc., 170 NLRB 362 (1968); Vitronic, Inc., 183 NLRB 1067 (1970). The Hearing Officer, however, found that the union agents engaged in no improper conduct. In doing so, she weighed conflicting testimony of various witnesses brought by both parties and explicitly made a credibility resolution in favor of the union's witnesses. Such a resolution is entitled to great weight by a reviewing court. This court has stated that "(t)he Board's choice between two conflicting views may not be set aside even though the court would justifiably have made a different choice had the matter been before it de novo," NLRB v. Bendix Corp., 299 F.2d 308, 310 (6th Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962), and that "(i)f (the Hearing Officer's) finding was supported by substantial evidence on the record considered as a whole, the reviewing court is not free to substitute their judgment." Westchester Plastics of Ohio, Inc. v. NLRB, 401 F.2d 903, 907 (6th Cir. 1968). Randall has not satisfied the burden necessary to overturn the finding of the Hearing Officer on this issue.

Objection six is that the misconduct throughout the "critical period" prior to and during the election resulted in the election's being held in "an atmosphere of coercion, confusion and fear" and "totally destroyed the effective exercise by the employees of the right to vote." The Hearing Officer and the Board considered evidence concerning events in the "critical period," restricted to the time from the filing of the decertification petition through the completion of the election. The Board found that Randall's evidence described only innocuous and isolated events insufficient to support the charge that the election was held in an atmosphere of coercion and confusion, and insufficient to require vacating of the election. On review, when looking at events in the defined critical period, we find that the Board's determination is supported by substantial evidence.

Randall argues, however, that the Board improperly restricted the critical period in refusing to consider pre-petition events. Acknowledging that the NLRB has established a rule, for the purpose of administrative convenience, against considering pre-petition activities, Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961), Randall argues that the rule is not absolute and that it should not have been followed in this case, in which the effects of the violent strike that preceded the petition influenced the election. Despite the Ideal Electric rule, the Board does consider pre-petition conduct on occasion, but only when there is significant post-petition conduct related to or continuing from pre-petition events. Parke Coal Co., 219 NLRB 546 (1975). To consider whether evidence of pre-petition events is to be admitted, the Board must consider the nature of post-petition conduct. If that conduct was insignificant or consisted of isolated incidents, it would be pointless for the Board to burden the hearing with additional evidence concerning pre-petition matters. The Board did not act in a capricious or arbitrary manner in declining to admit and...