Scintilla Power Corp. v. N.L.R.B.

• Decision Date: 01 June 1983
• Docket Number: Nos. 81-7441,81-7538,s. 81-7441
• Citation: 707 F.2d 419
• Parties: 113 L.R.R.M. (BNA) 2865, 97 Lab.Cas. P 10,168 SCINTILLA POWER CORPORATION, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 419

707 F.2d 419

113 L.R.R.M. (BNA) 2865, 97 Lab.Cas. P 10,168

SCINTILLA POWER CORPORATION, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner.

Nos. 81-7441, 81-7538.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1982.

Decided June 1, 1983.

William D. Claster, Gibson, Dunn & Crutcher, Newport Beach, Cal., for petitioner and cross-respondent.

Allison W. Brown, Jr., C. Metcalf, Washington, D.C., for respondent and cross-petitioner.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before KENNEDY, POOLE, and REINHARDT, Circuit Judges.

KENNEDY, Circuit Judge:

After a union obtained a majority of the validly cast ballots of employees in a representation election, the employer refused to bargain with the union. The Board issued a bargaining order, and the employer petitions us for review. The employer argues that the Board improperly certified the union as the employer's bargaining representative in view of an alleged atmosphere of coercion and intimidation which flawed the election as an index of employee preference. The employer argues that it was at least entitled to a hearing on its allegation that a fight between two employees, witnessed by some 30 of the 74 eligible voters, created such a coercive atmosphere that the election, which the union won by a 41 to 23 margin, should be set aside. For reasons expressed herein, we deny the petition and enforce the Board's bargaining order.

In the incident in question, a pro-company employee and a union adherent, one Gary, engaged in the loud argument six days before the election. Presumably because Gary was ignorant of the word's meaning, he became enraged by the employee's characterization of him as a "gainsayer." Gary chose to make of this a fighting word and aimed a fist at the pro-companyman's face, shattering his glasses.

The Regional Director, after an ex parte investigation pursuant to 29 C.F.R. Sec. 102.69(c), concluded that the employer's objection to the election failed "to raise substantial and material issues such as would warrant setting aside an election," and therefore, under 29 C.F.R. Sec. 102.69(d), no adversary hearing on the objection was required. The Regional Director found that the union adherent was neither an agent of the union nor an employee. He noted that "the investigation disclosed that Gary was presumably at the plant to meet an employee of the Employer." Consistent with NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, 1131 & n. 5 (9th Cir.1973), and NLRB v. Mike Yurosek & Sons, Inc., 597 F.2d 661, 663 (9th Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979), he proceeded to give Gary's misconduct less weight than he would have if it were attributable to the union.

The employer before us has not argued that the actions of the union adherent were attributable to the union, or that the Regional Director improperly rejected this conclusion on the basis of his ex parte investigation. Compare ATR Wire and Cable Co. v. NLRB, 671 F.2d 188, 190 (6th Cir.1982).

It is true that one member of the Board would have remanded this case for an evidentiary hearing, in part "to determine the status of 'Gary'." But what the Board can consider on its own initiative is not coextensive with what we can consider. We ordinarily do not entertain arguments raised neither below nor in this court. For the purposes of this appeal, therefore, we treat the union adherent as a third-party volunteer, free from union control, acting impulsively on his own.

The employer's major objection is to the Regional Director's finding that the conduct of the union adherent did not necessarily require an inference that fear and coercion tainted the election. This finding, affirmed in this case by a divided Board, is subject to a circumscribed standard of review.

It is settled both by Board decision and our precedent that conduct of third parties will suffice to set aside an election if there has been coercive misconduct that interferes with employees in their free choice of a representative. The May Department Stores Co. v. NLRB, 707 F.2d 430 (9th Cir.1983); Sauk Valley, 486 F.2d at 1132 n. 5; NLRB v. Miramar of California, Inc., 601 F.2d 422, 424-25 (9th Cir.1979). Here the Board has resolved no factual issues against the employer but has found that, taken in the light most favorable to the employer the incident alleged did not create a significant impairment of the election process. The Board's determination is within its area of expertise and is entitled to great deference. It should not be overturned unless the Board has abused its discretion. The May Department Stores Co., at 430; NLRB v. Advanced Systems, Inc., 681 F.2d 570, 572 (9th Cir.1982).

The employer argues the Board erred in declining an evidentiary hearing. It is true that when misconduct is so serious that a trier of fact can infer that it would result in a coercive atmosphere, we will reverse the Board and order an evidentiary hearing. E.g., The May Department Stores Co., at 430; NLRB v. Advanced Systems, Inc., 681 F.2d 570, 572 (9th Cir.1982). The Board's conclusion, however, that an incident, even if proven, did not taint an election otherwise properly conducted, Valley Rock Products, Inc. v. NLRB, 590 F.2d 300, 302 (9th Cir.1979), is entitled to deference and is not lightly to be reversed.

The Board argues that the employer waived its argument that it should have had a hearing on its allegations by not seeking a hearing before the Board, under the principle of NLRB v. Southeast Ass'n for Retarded Citizens, Inc., 666 F.2d 428, 432 (9th...