Valley Rock Products, Inc. v. N.L.R.B.
| Decision Date | 25 January 1979 |
| Docket Number | No. 77-3854,77-3854 |
| Citation | 590 F.2d 300 |
| Parties | 100 L.R.R.M. (BNA) 2695, 85 Lab.Cas. P 11,156 VALLEY ROCK PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Mark Montobbio (argued), Severson, Werson, Berke & Melchior, San Francisco, Cal., for petitioner.
Andrew Tranovich (argued), Washington, D.C., for respondents.
Petition to Review a Decision of the National Labor Relations Board.
Before BROWNING and HUG, Circuit Judges, and HOFFMAN, * District Judge.
This case is before the court upon the petition of Valley Rock Products, Inc. to review and set aside an order of the National Labor Relations Board issued against it on December 5, 1977, and reported at 233 NLRB No. 142. The Board has cross-applied for enforcement of its order. This court has jurisdiction over the proceedings pursuant to § 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. § 151, Et seq. The order directed the employer to bargain with Local Union No. 3, International Union of Operating Engineers, AFL-CIO.
Valley Rock is engaged in the production and sales of sand and gravel, and in land leveling. A representation election conducted February 27, 1976, resulted in four votes cast for the union and eight votes against. The union filed objections to conduct affecting the results of the election, and a second election was held on July 27, 1976, pursuant to stipulation of the parties. At the second election twelve eligible voters cast six votes for the union, three votes against the union, and three ballots were challenged. The company filed timely objections to pre-election conduct by the union organizer.
After conducting Ex parte administrative investigation, the regional director concluded that the company's objections raised insufficient material issues of fact to justify an evidentiary hearing. Additionally, the regional director sustained the challenge to one of the ballots, making it unnecessary to resolve the challenges to the remaining ballots. The Board adopted the regional director's recommendations and certified the union. In the customary manner the employer sought judicial review by refusing to recognize or bargain with the certified union.
The Board contends, that, in granting summary judgment overruling the employer's objections to the election, it acted within the broad discretion vested in it by Congress in matters relating to representation proceedings. We recognize that the Board does have broad discretion in such matters; the question here is whether the Board, in the circumstances presented by this record, abused that discretion. It is the position of the Board that the allegations made in the objections to the election and in the affidavits filed in support thereof, if fully credited, could not have materially affected the election outcome; therefore it was proper for the Board to grant summary judgment on the issues. We disagree.
The company contends that the election should be set aside because of physical attack by the union organizer upon the president and vice-president of the company six days before the election. Secondly, the company contends that the Board should have overruled the union's challenge to the ballot of Ray Nelson, who the company contends was on a leave of absence at the time of the election, and was therefore eligible to vote. In the alternative the company contends that it was entitled to a hearing on the above issues.
Six days prior to the election the union's business agent and chief organizer, Frank Townley, accosted the company's vice-president, Lawrence Beigh, at approximately 8:30 p. m., in a local bar. According to Beigh's affidavit, Townley crossed the bar to where Beigh was standing, shouted obscenities to his face, complained of the manner in which the company treated its employees, and grabbed Beigh by the back of his neck. Townley soon released Beigh, although Beigh alleges that he experienced neck pains as a result of the incident and required medical attention. One company employee witnessed the entire incident and another employee learned of the incident upon entering the bar soon thereafter.
At approximately 10:15 that same evening Ovila Fleury, president of Valley Rock, entered the bar. Fleury stated in his affidavit that he was unaware of what had transpired earlier between Townley and Beigh. Fleury alleged that Townley shouted obscenities to him from the other end of the bar and asked him if he was going to buy him a drink. When Fleury ignored Townley's remarks, the union organizer approached him in a threatening manner, told him that the company was starving its people to death, and eventually began pushing and shoving Fleury in a violent manner. Another individual was present who Fleury said was known to be a violent person. Fleury stated that this individual warned him that he was Townley's backup man and was there to help Townley beat Fleury. Two employees witnessed the entire incident; one intervened to prevent further disturbance. Fleury alleges that he broke a bar glass in order to get the bartender to call the police.
Townley subsequently pled guilty to two counts of disturbing the peace and was sentenced to ten days in jail, suspended, placed on six months probation and fined $250.00. Charges were filed against Fleury for breaking the glass, but were dropped when Fleury agreed to pay 18 cents for the glass.
Two employees witnessed the incidents, with at least one of said employees being present on each occasion. Due to the small town environment in which the company is located, and the small number of persons employed by the company, it can be assumed that a significant number of the employees learned of the incidents prior to the election. However, the incidents should be kept in a proper perspective. Townley's acts on the night of July 21 are the only significant violent or coercive acts of which the company complains. There is no evidence of a pattern of coercion on the part of the union in an effort to affect the outcome of the election. The regional director, in her report following the election, described the incidents as "relatively intense but brief confrontations between individuals with differing viewpoints and interests," and determined that other witnesses to the incidents viewed the byplay with less intensity and assigned to it less importance than the participants themselves. Townley's acts in the bar very likely represent no more than the result of a good night of drinking prior to a hotly contested election.
It is well established that Congress has entrusted the Board with wide discretion in conducting and supervising elections. NLRB v. Sauk Valley Manufacturing Co., Inc., 486 F.2d 1127, 1130 (9th Cir. 1973). Accordingly, the party challenging the election carries a heavy burden in charging that coercion prevented a fair election, for evidence...
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