United Steelworkers of America, AFL-CIO v. NLRB, No. 73-3194

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, COLEMAN and AINSWORTH, Circuit
Citation496 F.2d 1342
PartiesUNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. METCO INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
Decision Date11 July 1974
Docket Number73-3291.,No. 73-3194

496 F.2d 1342 (1974)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

METCO INCORPORATED, Petitioner-Cross Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

Nos. 73-3194, 73-3291.

United States Court of Appeals, Fifth Circuit.

July 11, 1974.


496 F.2d 1343
COPYRIGHT MATERIAL OMITTED
496 F.2d 1344
George C. Longshore, Birmingham, Ala., for petitioner

Elliott Moore, Deputy Assoc. Gen. Counsel, Peter Carre, Atty., N. L. R. B., Washington, D. C., Walter C. Phillips, Regional Director, Atlanta, Ga., for N. L. R. B. in both cases.

Martin H. Steckel, John G. Skinner, Atlanta, Ga., for petitioner-cross respondent.

Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.

TUTTLE, Circuit Judge:

This case is before the Court on the petition of Metco, Incorporated (Metco) to review a decision of the National Labor Relations Board (Board) finding a violation of section 8(a)(5) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a)(5),1 and granting a cease and desist order. 205 N.L.R.B. No. 138 (1973). United Steelworkers of America, AFL-CIO (Union) also petitions for review of that portion of the Board's order denying its request for additional "make whole" relief. The Board has filed a cross-application for enforcement of its order. This Court has jurisdiction under section 10(e) and (f) of the Act.

FACTS

Metco is a small manufacturer of steel reels and related products, located in Hartsell, Alabama. The Union filed a representation petition in August, 1972, with the Board seeking certification as the bargaining agent of a unit of eighty-three production and maintenance employees of Metco. The Union successfully organized the employees and won the election conducted by the Board by a vote of fifty-two for, to twenty-six against, unionization.2

On the basis of questionable pre-election union conduct, Metco submitted to the Board timely objections to the results of the election. The conduct attacked was that the Union had made misrepresentations in leaflets distributed to the employees on the evening before the election concerning wage rates obtained at several other plants organized by the Union and that pro-Union employees had threatened other employees with physical violence in order to coerce their support for the Union. The Regional Director conducted an administrative investigation, receiving affidavits from the company to establish the objectionable conduct. The Regional

496 F.2d 1345
Director credited the allegations in the company's affidavits as true, but found that while the wage rate claims were subject to different interpretations, they were not material misrepresentations; that no Union agent was implicated in the alleged threats; and that there was not an atmosphere of fear or coercion surrounding the election which would justify setting it aside. On review, the Board accepted the findings of the Regional Director and certified the Union as the exclusive bargaining agent for this unit of Metco's employees

Subsequently Metco refused to bargain with the Union. A section 8(a)(5), refusal to bargain, charge was filed by the Union against Metco. On the basis of the Union's complaint and because Metco failed to offer any new or previously unavailable evidence to support its objections, the Board granted summary judgment for the Union. The Board also denied the Union's request for additional relief.

Metco charges as error on review: (1) Failure to invalidate the election on the basis of the Union's misrepresentations and threats; and (2) Denial of an evidentiary hearing on the claim of pre-election irregularities, in violation of the Board's rules and the due process clause of the Constitution. The Union claims error in the failure of the Board to impose a "make whole" remedy as was done in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. N. L. R. B., 145 U.S.App.D.C. 384, 449 F.2d 1046 (1971); International Union of Elec., Radio, etc. v. N. L. R. B., 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, Tiidee Products, Inc. v. Int. Union of Elec., Radio, etc., 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970).

THE SECTION 8(a)(5) CHARGE

In reviewing the Board's decision in this case, we are mindful that Congress "has vested the Board with broad discretion in dealing with matters relating to representation proceedings." N. L. R. B. v. White Knight Manufacturing Co., 474 F.2d 1064, 1067 (5th Cir. 1973).3 All that is required is that the Board's findings upholding the election be supported by substantial evidence in the record.4 29 U.S.C.A. § 160(f). Since a certification by the Board is not reviewable, the only manner in which Metco could challenge the election and certification was by refusing to bargain and obtaining review of the pre-election misconduct in a subsequent section 8(a)(5), unfair labor practice proceeding, which the Union would file against the company for refusing to bargain.5

Misrepresentation. The Board has applied a flexible test,6 which has been accepted by this Court,7 for evaluating questionable campaign communications: "(1) whether there has been a misrepresentation of a material fact; (2) whether the misrepresentation came from a party who was in an authoritative position to know the truth or who had special knowledge of the facts; (3) whether the other party had adequate

496 F.2d 1346
opportunity to reply and to correct the misrepresentation; and (4) whether the employees had independent knowledge of the misrepresented facts, so that they could effectively evaluate the propaganda." N. L. R. B. v. Carlton McLendon Furniture Co., Inc., supra, 488 F.2d at 62. In the present case, the Regional Director, whose findings the Board adopted, investigated Metco's objections, and found that although the alleged misrepresentations were "subject to differing interpretations," they "did not constitute misrepresentation of material facts."

The leaflets distributed by the Union contained statements concerning its negotiation efforts at three other plants located at distances far from Metco. The claims made for gains at two plants were clearly not material misrepresentations or even false, rather merely statements strongly in the Union's viewpoint. Part of the statement as to wage increases at the third plant were found to include both wage and fringe benefits and to be overstated by 2.8 cents. This type of campaign propaganda has been found insubstantial in other election cases. In Southwestern Portland Cement Co. v. N. L. R. B., 407 F.2d 131, 134 (5th Cir. 1969), cert. denied, 396 U.S. 820, 90 S.Ct. 59, 24 L.Ed.2d 71 (1970), the company was challenging an election lost by five votes on the basis of a Union misrepresentation understating the amount of dues. This Court explained: "The telegram in question, in essence, merely outlined the events and presented the Union's side of the story, namely, that while the Union employees at the other plant were paying $10.50 a month, a clear distinction should be drawn between regular dues assessed on an indefinite basis and a special three-month assessment which accounted for $5.00 of the current payments at the other plants." (Emphasis added). Likewise, in Follett Corp. v. N. L. R. B., 397 F.2d 91, 95 (7th Cir. 1968), a slight inaccuracy in a handbill asserting the wage rate obtained at a recently organized plant by the Union, but not clarifying that it would not become effective for another month, and the misrepresentation that employees received triple time during vacation, was found inconsequential in the context of the entire election campaign. See also Anchor Manufacturing Co. v. N. L. R. B., 300 F.2d 301 (5th Cir. 1962). Finally, the margin of victory,8 approximately 2:1, in this case was so wide, that Metco had to show "the Union's assertions in fact constituted an interference with a free choice of bargaining representatives," since it did not, the Board could find that Metco failed on its burden of proof.9

Coercion. In challenges to election conduct based on alleged coercion, this Court has held: "The decisive factor . . . is not whether improprieties occurred during the campaign, but rather whether the challenged conduct produced such a climate of tension and coercion that the employees were effectively precluded from making a free choice. N. L. R. B. v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir. 1969)." N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067. This court then continued, pointing out: "The burden of proof is on the

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objecting party. As this Court observed in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969)
`This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees\' exercise of free choice to such an extent that they materially affected the results of the election.\'" Id.

Metco presented the affidavits of four or five employees stating that they had been threatened by Union supporters and proof that an unidentified person had broken into the plant and shot up the vending machines in the employees' room. The Board found that the shooting incident occurred two months before, and was not related to, the election. Finally, the Board concluded that no Union agent had been implicated in the threats,10 nor was there evidence of a persuasive atmosphere of coercion which would necessitate setting aside the election. In addition, we point out that any influence resulting from the objectionable conduct was slight and should not upset the election, because the Union won the election by almost twice the number of votes recorded by the company.11 Metco did not produce affidavits attesting to threats of sufficient numbers even of actual coerced voters contrary to...

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17 practice notes
  • Highland Ranch v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • United States State Supreme Court (California)
    • September 10, 1981
    ...& M.W., AFL-CIO v. N.L.R.B. (D.C.Cir.1970) 426 F.2d 1243, 1248-1253; United Steelworkers of America, AFL-CIO v. N.L.R.B. (5th Cir.1974) 496 F.2d 1342, * Assigned by the Acting Chairperson of the Judicial Council. ** Assigned by the Acting Chairperson of the Judicial Council. ** * Assigned b......
  • N.L.R.B. v. VSA, Inc., No. 93-1677
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 12, 1994
    ...election is required where "a swing of two votes would have changed the result"); United Steel Workers of America, AFL-CIO v. N.L.R.B., 496 F.2d 1342, 1347 n. 11 (5th Cir.1974) ("If the margin of victory in a representational campaign is very narrow, minor violations should be more closely ......
  • N.L.R.B. v. Sumter Plywood Corp., No. 75-1391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 23, 1976
    ...signing cards was clearly within the control of the Union. 6 See United Steel Workers of America, AFL-CIO v. N.L.R.B., 5 Cir. 1974, 496 F.2d 1342 n. If the vote margin in a representational election is very narrow, minor violations should be more closely scrutinized. In other words, when th......
  • N.L.R.B. v. Claxton Mfg. Co., Inc., No. 79-1527
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 21, 1980
    ...E. g., Gulf Coast Automotive Warehouse Co. v. NLRB, 588 F.2d 1096 (5th Cir. 1979); United Steelworkers of America, AFL-CIO v. NLRB, 496 F.2d 1342 (5th Cir. 1974). But this discretion is not unlimited. Due process requires the Board to grant "a (post-election) hearing to a losing party who h......
  • Request a trial to view additional results
17 cases
  • Highland Ranch v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • United States State Supreme Court (California)
    • September 10, 1981
    ...& M.W., AFL-CIO v. N.L.R.B. (D.C.Cir.1970) 426 F.2d 1243, 1248-1253; United Steelworkers of America, AFL-CIO v. N.L.R.B. (5th Cir.1974) 496 F.2d 1342, * Assigned by the Acting Chairperson of the Judicial Council. ** Assigned by the Acting Chairperson of the Judicial Council. ** * Assigned b......
  • N.L.R.B. v. VSA, Inc., No. 93-1677
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 12, 1994
    ...election is required where "a swing of two votes would have changed the result"); United Steel Workers of America, AFL-CIO v. N.L.R.B., 496 F.2d 1342, 1347 n. 11 (5th Cir.1974) ("If the margin of victory in a representational campaign is very narrow, minor violations should be more closely ......
  • N.L.R.B. v. Sumter Plywood Corp., No. 75-1391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 23, 1976
    ...signing cards was clearly within the control of the Union. 6 See United Steel Workers of America, AFL-CIO v. N.L.R.B., 5 Cir. 1974, 496 F.2d 1342 n. If the vote margin in a representational election is very narrow, minor violations should be more closely scrutinized. In other words, when th......
  • N.L.R.B. v. Claxton Mfg. Co., Inc., No. 79-1527
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 21, 1980
    ...E. g., Gulf Coast Automotive Warehouse Co. v. NLRB, 588 F.2d 1096 (5th Cir. 1979); United Steelworkers of America, AFL-CIO v. NLRB, 496 F.2d 1342 (5th Cir. 1974). But this discretion is not unlimited. Due process requires the Board to grant "a (post-election) hearing to a losing party who h......
  • Request a trial to view additional results

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