United States Rubber Company v. NLRB, 23208.

• Decision Date: 20 February 1967
• Docket Number: No. 23208.,23208.
• Parties: UNITED STATES RUBBER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

373 F.2d 602 (1967)

UNITED STATES RUBBER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 23208.

United States Court of Appeals Fifth Circuit.

February 20, 1967.

Theo F. Weiss, San Antonio, Tex., Seymour Swerdlow, New York City, for petitioner, Clemens, Knight, Weiss & Spencer, San Antonio, Tex., Arthur, Dry, Kalish, Taylor & Wood, New York City, of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixen, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Asst. Gen. Counsel, Warren M. Laddon, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before WISDOM, COLEMAN and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge.

In this case United States Rubber Company has been found guilty of an unfair labor practice for refusal to bargain and has been ordered by the Board to bargain.¹ The employer admits refusal to bargain, contending certification of the union, which came after a Board-conducted election, was invalid.²

Determination of the unfair practice charge was made without hearing. The Trial Examiner granted the motion of the General Counsel for judgment on the pleadings, which was affirmed by the Board.³ The absence of a hearing arose out of the Board's declining to consider in this unfair practice proceeding evidence offered by the employer that the certification election was invalid, under the rule that this issue was determined (though without hearing) in the election proceeding after the employer filed objections to the election and the employer had not satisfactorily discharged its burden of showing that the evidence proffered was either newly discovered or previously unavailable. Pittsburg Plate Glass Company v. N.L.R.B., 313 U.S. 146, 162, 61 S.Ct. 908, 85 L.Ed. 1251 (1940). The Trial Examiner considered a summary of the evidence the employer proposed to offer on the issue of validity of the election, held that the employer could offer none of the evidence at a hearing, hence there were no litigable issues and no reason for a hearing. The employer's guilt was adjudged established by the pleadings and the judgment on the pleadings entered.

It is our opinion that the Board has acted arbitrarily and unreasonably. In the representation proceeding it should not have ruled on the employer's objections to the election without a hearing, for there were substantial and material issues which could be determined properly only by a hearing.⁴

In election proceedings the Act provides only for pre-election hearings. If post-election objections are filed the regional director must investigate them. Board Rules and Regulations § 102.69 (c); 29 C.F.R. 102.69(c).⁵

The critical objections to the election related to misrepresentations contained in a letter distributed to employees within 24 hours of the election, comparing wage rates and fringe benefits of its test drivers with those of drivers employed at a competitor's test track at Pecos, Texas, where drivers were represented by the same union here concerned. The letter was signed by Y. L. Dominguez, an official representative of the union, who was a test driver at the Pecos track and was on leave of absence to assist in organizing the union at U. S. Rubber's track; he was a leader in the organizational effort and had appeared for the union at the N.L.R.B. representation hearing. The letter purported to be an answer to statements made by U. S. Rubber personnel trying to "run down" the union's contract at the Pecos test track.

The part of the letter charged by the employer to contain the most damaging misstatement was:

"One more thing that the Company failed to mention is this; that we at Pecos work six days and the average miles that we drive per day, week or month is only 350 miles. You average over 500 miles. In other words, you are doing six-day sic work in only five and getting paid for only five."

The regional director found that the employer did not have adequate opportunity to reply to the letter.

The employer's sworn objections stated in detail respects in which statements in the letter, including that quoted above, were claimed to be false. On the record before us it appears that at least the quoted statement was false. The assertions were serious ones.

"Purportedly authoritative and truthful assertions concerning wages and pensions of the character of those made in this case are not mere prattle; they are the stuff of life for Unions and members, the selfsame subjects concerning which men organize and elect their representatives to bargain." N. L. R. B. v. Houston Chronicle Publishing Company, 300 F.2d 273 (5th Cir., 1962).

In our opinion the objections and the resulting investigation revealed the existence of substantial and material issues which called for a hearing. N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (5th Cir., 1956); N. L. R. B. v. West Texas Utilities Co., 214 F.2d 732 (5th Cir., 1954).

Pursuant to the Board regulation the regional director conducted an ex parte investigation. The investigator obtained data from the office manager of the Pecos track bearing on the truth of Dominguez's statements. Reading, construing and applying the data, and measuring the facts revealed against what the letter said, required consideration of many variables — including number of days of work, hourly rates of pay, average number of miles driven per day, whether an auto or truck is driven, speed of the test, whether the test is one which though at slower speed is more difficult and tiring than one conducted at higher speeds.⁶

The regional director recognized the existence of the variables that tended to make average mileage figures not properly comparable, then adopted from the Pecos data an average mileage per day figure for Pecos drivers of 375 which considered none of the variables. He then dismissed as immaterial the difference between this figure and the represented figure of 350. In addition the affidavit given the investigator by the Pecos office manager identified the 375 figure as the average for a vehicle in a day and pointed out the average for a Pecos driver would be a greater figure.

A Board hearing was the proper forum to consider these intricate figures, variables and details of operation.

The regional director's report characterized the above-quoted statement in the letter as ambiguous, subject to different interpretations and highly improbable to mislead the voters. To us it is neither minor nor meaningless but means exactly what it says — that, as compared with the Pecos competitor, the employer requires its employees to do six days work but pays them only for five. The qualifications, exceptions, conditions and variables recognized by the regional director are what is uncertain, not what the letter states. Dominguez and the union had special knowledge of the facts asserted about Pecos, tending to inspire reliance by U. S. Rubber drivers on what Dominguez said. N. L. R. B. v. Houston Chronicle Publishing...