Vitek Electronics, Inc. v. N.L.R.B.
| Decision Date | 20 July 1981 |
| Docket Number | No. 80-1867,80-1867 |
| Citation | 653 F.2d 785 |
| Parties | 107 L.R.R.M. (BNA) 3002, 107 L.R.R.M. (BNA) 3303, 91 Lab.Cas. P 12,859 VITEK ELECTRONICS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
B. Michael Thrope (argued), Parker Chapin Flattau & Klimpl, New York City, for petitioner; John E. Jay, Jeffrey S. Donin, New York City, of counsel.
Andrew F. Tranovich (argued), Mendelssohn V. McLena, N. L. R. B., Washington, D. C., for respondent; William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., of counsel.
Before ROSENN and HIGGINBOTHAM, Circuit Judges, and McCUNE, District Judge. *
This petition for review and cross-application for enforcement of an order of the National Labor Relations Board presents a number of issues concerning the propriety of union conduct preceding a representation election. On April 5, 1979, the International Union of Electrical, Radio and Machine Workers (the IUE or Union) filed a petition with the National Labor Relations Board (the Board) for a representation election at the Edison, New Jersey, plant of Vitek Electronics, Inc. The election, involving a bargaining unit of 120 employees previously not represented by a union, was held June 7, 1979. The Union won, 70 to 45. Vitek filed eight objections with the Board's Regional Director (the "RD"). After an administrative investigation that included ex parte interviews with potential Vitek witnesses, but no hearing, the RD recommended that Vitek's objections be overruled. Vitek filed exceptions with the Board, but the Board, also without a hearing, adopted the RD's findings and recommendations.
Vitek, as a method of challenging the election, subsequently refused to bargain with the Union. On February 4, 1980, the General Counsel issued a complaint alleging violation of section 8(a)(1) & (5) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1) & (5) (1976). The Board entered summary judgment in favor of the General Counsel because the only issues raised by Vitek were essentially already litigated and lost by Vitek in the underlying representation case. Vitek filed this petition for review of the Board's subsequent order; the Board has cross-applied for enforcement. 29 U.S.C. § 160(e) & (f) (1976).
Our review is essentially a review of the Regional Director's post-election findings and conclusions as adopted by the Board. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed 1251 (1941); Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 293 (3d Cir. 1981). In his report the RD dealt with Vitek's eight objections in four groups. On its petition to this court Vitek attacks the findings and conclusions with respect to two of these groups of objections one alleging union intimidation and another alleging union misrepresentation in campaign literature. We conclude that Vitek's objections to the Union's alleged misrepresentations, as presented to the RD, disclosed "substantial and material factual issues" that required the RD or the Board to conduct an evidentiary hearing prior to certification of the election results. We grant the petition for review and deny enforcement.
According to Vitek's initial submission to the RD, "(o)n the day of the election itself, and possibly on ... the day prior to the election, the Union distributed to employees" two "handbills" () whose contents were allegedly false. One was titled "IUE-Vitek News" (the "News" handbill) dated June 4, 1979. Its front page declared that although
(l)atest figures issued by the government indicate that the cost of living is going up at a rate of 14% ... the Vitek Company provides no cost of living protection for its workers, another reason why we need a union at Vitek.
In other plants in this area, where the people have previously voted in the IUE, the Union has negotiated cost of living protective clauses.
Under their union contract
* AT EDISON PRODUCTS (WHITE-WESTINGHOUSE), EDISON, N.J.
* AT GULTON INDUSTRIES, METUCHEN, N.J.
* AT DELCO BATTERY, NEW BRUNSWICK, N.J.
the wages of IUE members are increased regularly, throughout the year, to keep pace with the cost of living increase announced by the U.S. Department of Labor.
This is the kind of protection we need at Vitek where wages are low enough without being further "cut" by runaway prices.
(Emphasis added.)
Vitek asserted that the IUE contracts at Edison Products, Gulton Industries, and Delco Battery did
Another handbill was entitled "A Story By and For Vitek Workers" (the "Story" handbill). "Chapter One" of this story told the following unhappy tale:
In the "good ole" days, before the union came on the scene, the company had every opportunity to make Vitek a decent place to work.
But they goofed. Rates of pay were the lowest in the area. Seniority meant nothing when it came to promotions or overtime.
Few safety precautions were taken to protect the people from carbon monoxide fumes, and when they got sick because of the fumes, many of the workers lost pay.
Employees could be fired with no chance of appeal and all in all, management was completely in the driver's seat.
(Emphasis added.)
Vitek contended that these statements were 1 As to both handbills, moreover, Vitek claimed that the timing of the distribution effectively precluded Vitek from having "an adequate opportunity to obtain the necessary information and to prepare and distribute an appropriate response to these misrepresentations."
On June 27, 1979, Vitek's president, Robert G. Geissler, submitted an affidavit to the RD in support of Vitek's objections. He detailed the circumstances making impossible effective rebuttal of the Union's misrepresentations. He also explained why the Union handbills were, in his view, false and misleading. He noted that a Board agent had been provided with copies of the collective bargaining agreements between the IUE and Edison, Gulton, and Delco. Geissler also provided a comparison of Vitek's wages (both before and after April 15, 1979) and current wages at ten other area employers for allegedly comparable "unskilled" work. This comparison showed that of the eleven companies, Vitek's wages had been not the lowest but the highest, both before and after April 15, 1979.
Apparently in response to the Board agent's request for further information, Vitek submitted additional information in support of its objections, including a list of its various pay scales in effect from January 2, 1976 (the date on which "Vitek started hiring its own employees") through April 14, 1979. This list confirmed Geissler's earlier assertion, and showed that Vitek's wages had, since at least October 24, 1977 (and not, as suggested by the dissent, only since April 15, 1979), exceeded those of ten local labor-market competitors.
Finally, on August 31, Vitek submitted detailed calculations of the precise extent to which the Union's "News" handbill had misrepresented its cost of living agreements at Edison, Gulton and Delco.
In his report, adopted by the Board, the Regional Director overruled all of Vitek's objections and recommended that the Union be certified. Regarding the Union's "Story" handbill, the RD held that "in the 'good ole' days, before the Union came on the scene" referred to "some unspecified period of time in the past." 2 On the other hand, the evidence marshalled by Vitek to counter the assertions concerning relative wage rates related only to wages that took effect as of October 24, 1977. Thus, the RD found that there was "no evidence ... submitted to support the Employer's assertion that the Petitioner's contention concerning wages was a material misrepresentation of fact." Further, the RD found that even if this was a misrepresentation, Vitek had (a) "prompted" it by its April 2 announcement to employees that it was conducting a "study of area wages," and (b) deliberately chosen to let it remain uncontested. Regarding the "News" handbill, relating to cost of living adjustment (COLA) clauses, it was "undisputed that Petitioner (i. e., the Union) does in fact have cost of living protective clauses which are designed to keep pace with increases in the cost of living albeit not at the actual rate of increase in the cost of living." Thus, the RD found that the handbill was not a "substantial departure from the truth." For these reasons, among others, the representations were held to be immaterial to the validity of the election.
We begin by noting what was, perhaps, too obvious for the RD to mention in his report. Both of the handbills at issue here contained representations as to which Vitek raised at least a genuine issue concerning their falsity. Vitek's president stated by sworn affidavit that Vitek's pre-April 15, 1979 wage scale exceeded those of ten local competitors. Vitek further documented its claim that this same wage scale had existed since October 1977, well before the Union had "come on the scene" to engage in the current organization effort. 3 Thus, Vitek did submit "comparative data ... concerning ... competitors' wage structures" that, if true, seemed to negate the truth of the Union's claim that Vitek's wages were "the lowest in the area." Secondly, it is apparent from the face of the Union's "News" handbill that in it the Union seemed to claim that its contracts at other plants insulated workers from the adversities of inflation. And...
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