TRW-United Greenfield Div. v. N.L.R.B.

• Decision Date: 11 October 1983
• Docket Number: TRW-UNITED,No. 82-8659,82-8659
• Citation: 716 F.2d 1391
• Parties: 114 L.R.R.M. (BNA) 2921, 98 Lab.Cas. P 10,485 GREENFIELD DIVISION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, Intervenor.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1391

716 F.2d 1391

114 L.R.R.M. (BNA) 2921, 98 Lab.Cas. P 10,485

TRW-UNITED GREENFIELD DIVISION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner International Union, United Automobile, Aerospace &amp Agriculture Implement Workers of America, Intervenor.

No. 82-8659.

United States Court of Appeals, Eleventh Circuit.

Oct. 11, 1983.

Robert L. Thompson, David M. Vaughan, Atlanta, Ga., for petitioner, cross-respondent.

Morgan Stanford, Richard A. Cohen, James D. Fagan, Jr., Atlanta, Ga., for Intern. Union, UAW.

Elliott Moore, Assoc. Gen. Counsel, NLRB, Appellate Court Branch, Washington, D.C., for respondent, cross-petitioner.

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

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

ALLGOOD, District Judge:

TRW-United Greenfield Division petitions this court to review and set aside an adverse order of the National Labor Relations Board. The Board cross-petitions for enforcement of the order.

TRW is an Ohio based corporation with a plant in Evans, Georgia, which manufactures high speed cutting tools. In 1977 the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), began organizational activities among the company's employees. On December 16, 1977, an election was held in which the employees voted 354 to 198 against union representation. The union filed election objections and also filed charges that TRW (the company) had engaged in unfair labor practices.

After a hearing on the consolidated charges, an administrative law judge found that the company had violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1976) and set aside the results of the election. The Board affirmed the decision of the ALJ and directed that a second election be held. The Fifth Circuit affirmed. TRW-United Greenfield Division v. N.L.R.B., 637 F.2d 410 (5th Cir.1981).

A second election was held on November 15, 1979, resulting in a tie, 209 to 209, with three challenged ballots. The company filed objections to the election alleging that the union had made material misrepresentations concerning employee benefits at other TRW plants and that the union had created an atmosphere of fear and coercion among the employees during the pre-election period. The company also challenged the status of three second shift dispatchers stating they were supervisors or managerial employees and thus ineligible to vote.

On December 28, 1979 the Board's Acting Regional Director issued a report recommending that the election objections be overruled and the challenged ballots be opened and counted. The company filed exceptions to the report. On April 14, 1980 the Board issued an order adopting the recommendations with respect to the election objections, but found the company had raised substantial and material factual issues as to the challenges and remanded the case for a hearing. The company filed a motion for reconsideration which was granted and the Board directed that the hearing include the company's election objections.

A hearing was held before an administrative law judge in July and August 1980. On June 3, 1981 the ALJ issued an opinion overruling the objections of the company and finding that the second shift dispatchers did not exercise sufficient supervisory authority to qualify as supervisors within the meaning of the Act. The three challenged ballots were ordered opened and an appropriate certification issued based on the revised tally. These findings with minor modifications were adopted by the Board. The revised tally showed 212 votes for and 209 votes against representation by the union. On February 25, 1982 the Board certified the union as the exclusive bargaining representative of the company's production and maintenance employees.

On May 28, 1982, based on a charge filed by the union, the Board's General Counsel issued a complaint alleging that the company had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, 29 U.S.C. 158(a)(5) and (1), by refusing to recognize and bargain with the union upon request since March 24, 1982. After an answer was filed, the General Counsel filed a motion for summary judgment. On September 17, 1982, the Board granted the motion for the union, finding the company was not entitled to relitigate issues which had been fully litigated and finally determined in the representation proceeding, absent newly discovered or previously unavailable information. The Board ordered the company to cease and desist from its refusal to bargain with the union. It is from this order that the company appeals to this court for review. The company raises the following issues: (1) whether the Board erred in failing to set aside the election results where the union and its supporters in close proximity to the election made material misrepresentations regarding benefits at other TRW plants; (2) whether the petitioner was denied a full and fair hearing by the administrative law judge's refusal to allow petitioner to call additional witnesses; (3) whether the Board erred in failing to set aside the election results where threats of violence by union representatives created an atmosphere of fear and coercion; and (4) whether there was substantial evidence to support a finding that the second shift dispatchers were not supervisors within the meaning of the National Labor Relations Act.

The Board has broad discretion in conducting and supervising elections. N.L.R.B. v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); Daylight Grocery Co., Inc. v. N.L.R.B., 678 F.2d 905, 909 (11th Cir.1982); N.L.R.B. v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir.1979). Determination of whether a union representation election was unfairly conducted and should be set aside is primarily a question for the National Labor Relations Board. The burden is on the objecting party to prove, by specific evidence, not only that unlawful acts occurred but also that those acts interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election. N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969). Thus, the only question for this court is whether the Board reasonably exercised its discretion in overruling the company's election objections and ballot challenges. Pepperell Manufacturing Company v. N.L.R.B., 403 F.2d 520, 522 (5th Cir.1968) cert. denied 395 U.S. 922, 89 S.Ct. 1774, 23 L.Ed.2d 238; Neuhoff Bros. Packers, Inc. v. N.L.R.B., 362 F.2d 611, 614 (5th Cir.1966) cert. denied 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed.2d 106. The Board's determination will be sustained if it is supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

At a meeting of approximately 60 employees shortly before the November election, union business agent Louis Echols was asked about contract benefits at the company's Putnam plant. Specifically the employees wanted to know about dental and drug plans. The company contends that Echols told the group that the plant had a dental plan, when in fact it did not. They further argue that they did not learn of this misrepresentation until late in the afternoon of the day before the election, which was too late for them to reply and for this reason the election should be set aside. The ALJ found the testimony of Echols, that he had...