Walled Lake Door Company v. NLRB, 71-3338.
| Decision Date | 01 February 1973 |
| Docket Number | No. 71-3338.,71-3338. |
| Citation | 472 F.2d 1010 |
| Parties | WALLED LAKE DOOR COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Guy Mitchell, Jr., Tupelo, Miss, for petitioner-cross respondent.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., John J. A. Reynolds, Jr., Director, Region 26, N.L.R.B., Memphis, Tenn., John H. Ferguson, Washington, D. C., for respondent-cross petitioner.
Before WISDOM and INGRAHAM, Circuit Judges, and BOOTLE, District Judge.
The Walled Lake Door Company, petitioner, seeks review of an order of the National Labor Relations Board finding the Company guilty of unfair labor practices. The Board filed a cross-application for enforcement of its order. The Board found that the Company had violated Sections 8(a) (5) and 8(a) (1) of the National Labor Relations Act, 29 U. S.C. § 151 et seq., by refusing to bargain with the Southern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. After an election, the Board certified the Union as the exclusive representative of the Company's employees in its Tupelo, Mississippi, plant. The Company contends that the election and resulting certification were invalid because of substantial and material last-minute misrepresentations by the Union which interfered with the employees' free choice and directly affected the result of the election. After a perfunctory ex parte investigation, the Board denied the Company's request for a hearing on its objections both in the representation proceeding and in the unfair labor practice proceeding. We decline to enforce the order.
The representation election, held on January 19, 1971, resulted in 26 votes for the Union and 22 against the Union. One vote was challenged; one ballot was void; four eligible employees did not vote.
The Company has five plants: in Gila Bend, Arizona; Cameron, Texas; Stanley, Virginia; Richmond, Indiana; and Tupelo, Mississippi. Two plants, Gila Bend and Richmond, are organized and represented by the same union involved in this case. During the year before the Tupelo election the Union was defeated 27 to 14 in an election at the Stanley plant.
The Company filed objections to the election on January 22, 1971. The target of these objections is a letter by the Union to the employees, apparently timed to deprive the employer of the opportunity effectively to rebut the misrepresentations. Some of the employees received the letter on the Saturday before the election on Tuesday, January 19, 1971; others received it on Monday, January 18. The letter did not come to the attention of the Company until Monday, the day before the election.
The letter contains a manifest misstatement of fact:
P.S. Join hands with employees of the 4 Walled Lake plants who are represented by unions.
The letter was signed, "Your Organizing Committee, Southern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO". Because of the source, it would seem reasonable for the employees to accept the statement as true. It is a fair inference that the next step in an employee's thinking would be to ask: If the employees in all of the Company's other plants are represented by the Union, why should not the Tupelo plant employees be represented by that same Union? In Union there is strength; as employees of a completely unionized company they would have more bargaining leverage than as employees of a nonunionized plant at Tupelo. Preceding the postscript, the letter recited a long list of benefits enjoyed by the employees at the unionized plants.1 The record shows that the letter had the impact on a number of employees that one might expect.2
The Company attempted to combat the effect of the letter. President Quinif made a speech to the employees in which he gave the facts with respect to the number of plants that were unionized. He also corrected other misstatements in the letter. Eight employees did not attend his talk. There is a question whether, in view of the Union's letter, the speech helped or hurt the Company's efforts to counteract the letter. Many employees preferred to believe the Union's letter, not Quinif's speech.3
In its brief before this Court the Board, in a crepuscular euphemism, referred to the Union letter's misstatement about the number of plants that were unionized as an "arithmetical inaccuracy". And, according to the brief, insistence on "the exact number of union Company plants would be tantamount to insisting on `absolute precision of statement'".
After the Company filed its objections,4 the Board conducted an ex parte investigation. It disposed of the reference to the other plants being represented by the Union, as follows:
Curtis testified that the postscript reference as to the four Walled Lake plants being represented by Unions was included on the basis of the information furnished him by the International Union, but he later learned that such information was in error.
The Regional Director found that there was no conflict in the evidence and, presumably, in the inferences to be drawn from the evidence. Of course, under Board procedure, the petitioner was not permitted to take a statement from the author of the letter, Union representative Curtis, was not furnished a copy of his statement taken by the Board, and was given no chance to cross-examine him or any employee since the Board refused the petitioner's request for a hearing. The Board considered the misrepresentations as being "permissible campaign propaganda".
The Board discussed the failure of these eight employees to hear Quinif's speech and, after disposing of six of the eight, based on the ex parte investigation, made the following finding as to the remaining two employees:
The final results of the election could not have been affected by the votes of the two employees who had no knowledge of the contents of the speech.
This is an obvious "arithmetical inaccuracy", for a change in two votes would have resulted in a tie. In addition, no one can say how many votes were affected by the letter. In a close election, the Board should scrutinize actions of both the Company and the Union that might mislead employees. And it should not trifle with irrefragable arithmetic.
The Board overruled the exceptions and adopted the Regional Director's findings and recommendations. It then filed a complaint against the Company for refusal to bargain. The Company filed an answer alleging that a full hearing would reveal that the employees were misled by material misrepresentations on the part of the Union and that such material misrepresentations influenced the votes which would have been in opposition to the Union and directly affected the outcome of the election. As we noted, at the time of the Board's ex parte investigation, the Company was not permitted to take statements from members of the bargaining unit, was not permitted to be present when the Board agent took such statements, and was not furnished copies of such statements; three members of the bargaining unit, however, voluntarily gave statements which were filed with the answer.5
The General Counsel of the National Labor Relations Board then moved for a summary judgment based on the pleadings. On October 12, 1971, the Board entered its decision and order now before this Court. The Board held that the Company was seeking to relitigate the issues which had been raised in the original objections and said:
In any event, the contents of these affidavits, even if established in an evidentiary hearing, would not warrant setting aside the election herein.
In a recent case, N.L.R.B. v. Overland Hauling Inc., 5 Cir. 1972, 461 F.2d 944, this Court summarized the pertinent law: ...
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