Southwestern Portland Cement Company v. NLRB, 25791.
| Decision Date | 07 April 1969 |
| Docket Number | No. 25791.,25791. |
| Citation | 407 F.2d 131 |
| Parties | SOUTHWESTERN PORTLAND CEMENT COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. A. Thurmond, J. F. Hulse, Scott, Hulse, Marshall & Feuille, El Paso, Tex., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Vivian Asplund, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate General Counsel, William Wachter, Attorney, N. L. R. B., Washington, D. C., for respondent.
Before GOLDBERG and MORGAN, Circuit Judges, and LIEB, District Judge.
This case is before this court upon the petition of Southwestern Portland Cement Company, hereinafter referred to as the Company, to review and set aside an order of the National Labor Relations Board, hereinafter referred to as the Board. It is another of those increasingly frequent cases in which an employer has objections to the conduct of a representation election and, in order to obtain judicial review of his contention, refuses to bargain with a certified union thus violating Section 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5), and (1) and causing a Board order directing bargaining upon request to be issued.
The objections of the Company to the election in this case are directed to certain alleged misrepresentations in a telegram issued by the Union and posted by it on the Company's plant bulletin board on the day of the election and to the procedure used by the Board in determining the findings and conclusions which it reached. We believe that the Company's objections are not valid and hereby enforce the Board's order.
On August 23, 1966, the Union filed a petition with the Board for a representation election. The Company and the Union stipulated to, and the Board's Regional Director approved, an election to be held pursuant to the Board's regulations. On February 9, 1967, the Board conducted the election here disputed, and the Union won that election by a vote of 25 to 20 with no ballots being challenged.
Subsequently, the Company filed timely Objections to Conduct Affecting the Result of the Election. After receiving notice from the Regional Director to present relevant evidence, the Company submitted affidavits in support of its objections, and the Union submitted the affidavit of Lyle W. Johnson, the union organizer at the Odessa, Texas, plant of the Company.
As we have said before, the Company specifically objected to a certain telegram which stated:
The Regional Director issued a Report on Objections, recommending that the Company's Objections to Conduct Affecting the Result of the Election be overruled, and concluding, based upon findings of fact in his Report, that the Contents of the telegram in question are not material misrepresentations of fact. The Report finds that because of processing arbitration cases, the Union treasury had been depeleted; and the other local had voted a $5.00 assessment for three months.
The Regional Director then transmitted his Report on Objections to the Board. Along with this report were sent the Company's exceptions to the Report. In support of these exceptions the Company submitted certain documents which were also sent to the Board. However, the Regional Director did not forward to the Board the Company's affidavits and exhibits in support of its Objections to Conduct Affecting the Result of the Election.
On June 20, 1967, the Board found that the Company's exceptions raised no material or substantial issues of fact or law which would warrant reversing the Regional Director's findings and recommendations. Accordingly, it adopted them and certified the Union.
On August 10, 1967, the General Counsel issued a complaint alleging that the Company had violated Section 8(a) (5) and (1) of the act by refusing to bargain with the Union on request. In its answer, the Company admitted most of the allegations in the complaint, but challenged the validity of the certification, complaining that it was improperly denied a hearing on its objections.
On October 30, 1967, the Trial Examiner found that the Company had not shown that there was any newly discovered evidence with regard to its objections and that it had presented no factual issue which warranted a hearing. Accordingly, he granted the motion for summary judgment and found that the Company had violated Section 8(a) (5) and (1) of the act. Thereafter, the Company filed objections, along with a motion to reconsider the determination in the representation proceeding.
On January 11, 1968, the Board, affirming the Trial Examiner, found that the Company had violated Section 8(a) (5) and (1). Since, as the Board observed, the Company's position in the representation case had been previously considered by the Board, and the Board found that there were no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings, the Board denied the Company's motion to reconsider the determinations made in the representation case. The Board's order requires the Company to cease and desist from the unfair labor practices found, and it directs the Company to bargain upon request and to post appropriate notices. The order is reported in 169 NLRB No. 39.
Four issues are presented on this appeal, each of which will be discussed fully by the court.
The first issue is whether or not the Board should have set aside the representation election because of the assertions in the telegram. We believe that the Board was correct in not setting aside the election.
It must be kept in mind that the burden is on the party objecting to the conduct of the representation election to prove that there has been prejudice to the fairness of the election. NLRB v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961); Home Town Foods, Inc. v. NLRB, 379 F.2d 241 (5 Cir., 1967). The burden thus assumed is a heavy one. Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 942 (5 Cir., 1959). In discharging this burden the Company must show that such false statements as may have been made in fact constituted an interference with a free choice of bargaining representatives; it is obvious that every false statement does not. Anchor Manufacturing Company v. NLRB, 300 F.2d 301, 303 (5 Cir., 1962); NLRB v. Trinity Steel Company, 214 F.2d 120, 123 (5 Cir., 1954).
In the exercise of its discretion in matters relating to election propaganda, the Board does not undertake to police or censor propaganda used in the elections it conducts, but rather leaves to the good sense of the voters the appraisal of such matters, and to the opposing parties the task of correcting inaccurate and untruthful statements. Linn v. United Plant...
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