Excelsior Laundry v. National Labor Relations Board

409 F.2d 70

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 15, 1969
• Docket: 9687
• Status: Published

Opinions

BREITENSTEIN, Circuit Judge.

Petitioner, Excelsior Laundry, seeks review of a Board order holding that it had violated § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to bargain with the certified representative of its employees. By its answer to the petition the Board seeks enforcement of its order.

On October 21, 1965, the Union, the Communication Workers of America, AFL-CIO, filed a representation petition with the Board. On December 2, 1965, a consent election was held. The result was 67 votes for and 86 votes against the Union. After timely objection by the Union alleging improper Company conduct influencing the election, an administrative investigation was held and the Board set aside the election. On March 18, 1966, there was a second election in which the vote was 78 for and 72 against the Union with 13 ballots challenged. After a hearing, the Board sustained a sufficient number of challenges to leave the resulting vote in favor of the Union. The basis for the ruling was that the contested ballots were cast by supervisors.

The Company contends that the Board erred in setting aside the first election. The Union raised five objections to that election. The Regional Director sustained two of these. The Company excepted to the report and the Board sustained the Director on one objection only. This exception related to solicitation of employees by agents of the Company to sign cards repudiating the Union.

The Company admits that about a month before the election its supervisors distributed throughout the Company premises approximately 60 Company prepared cards and solicited employees’ signatures. The text of the card was:

“PETITION FOR NATIONAL LABOR RELATIONS BOARD

We, the undersigned employees, of our own free will and accord and without any coercion or undue influence whatsoever from any party, wish to inform the National Labor Relations Board that we are opposed to the unionization of the employees of the Excelsior Laundry by the Communications Workers or any other union.

Date -

Signed -”

The Regional Director considered the objections administratively and conducted no hearing. He received two affidavits which were tendered by the Union and which tended to show coerciveness in the card distribution. He rejected 70 Company affidavits tending to show no coercion. He denied the Company the right to cross-examine the two individuals whose affidavits he accepted. He made no finding of Company animosity towards the Union or of other Company coercion. He held, and the Board agreed, that the card distribution was a per se violation which invalidated the election.

We recognize that Congress entrusted to the Board the control of election proceedings¹ and that such control includes a wide degree of discretion in establishing indispensable procedures and safeguards.² The question is whether in this instance the Board has abused that discretion.³

Before an election may be set aside, the actions claimed to be coercive must be shown to have had a probably prejudicial effect on the fairness of the election.⁴ The Board argues that the distribution of the cards was per se coercion within the meaning of 8(a) (1). The court decisions which it cites⁵ are not persuasive because in each there were other threats or coercive conduct by the employer. Such proof is lacking here. We know of no court decision that the distribution of cards such as those with which we are concerned is a violation in the absence of some showing of other coercion or union animosity.⁶

Here we have the admitted circulation of the cards to less than half of the employees more than a month before the election plus two affidavits allegedly showing coercion. In the administrative proceedings, 70 counter-affidavits offered by the Company were rejected. No hearing was held so that the Company could cross-examine the two affiants whose statements were received. No finding was made of coercion except on the basis of the card distribution. We believe that the Company tendered a reasonable and material issue which was substantially related to the circumstances and effect of the card distribution. It never had an opportunity to be heard on this issue. We believe that it was entitled to an evidentiary hearing,⁷ and that the decision of the Board without such hearing was an abuse of discretion.⁸

This decision makes it unnecessary for us to consider the validity of the ballots challenged at the second election.

The petition-for review is granted and the case is remanded to the Board for an evidentiary hearing on the objections to the first election. Because the Board acted only on the objection relating to card distribution and because other objections made by the Union raise fact questions, the hearing should encompass all pertinent objections.

Enforcement is denied at this time without prejudice to further consideration if, after hearing, the Board determines that as a matter of fact there was coercion affecting the fairness of the election.

1 . National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704.

2 . National Labor Relations Board v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322; and National Labor Relations Board v. Ideal Laundry and Dry Cleaning Co., 10 Cir., 330 F.2d 712, 715.

3 . See National Labor Relations Board v. Zanes Ewalt Warehouse, Inc., 5 Cir., 384 F.2d 794, 796, n. 1.

4 . Cf. National Labor Relations Board v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455.

5 . National Labor Relations Board v. S & H Grossinger’s Inc., 2 Cir., 372 F.2d 26, 28-29; Edward Fields, Inc. v. National Labor Relations Board, 2 Cir., 325 F.2d 754, 759-760; and National Labor Relations Board v. Movie Star, Inc., 5 Cir., 361 F.2d 346, 348-349.

6 . See S. H. Kress & Co. v. National Labor Relations Board, 9 Cir., 317 F.2d 225, in which it is held that the circulation by an employer of a petition relating to the signing of representation cards was not a violation of § 8(a) (1) in the absence of any other showing of coercion.

7 . National Labor Relations Board v. Bata Shoe Company, 4 Cir., 377 F.2d 821, cert. denied 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265.

8 . Cf. National Labor Relations Board v. Ideal Laundry and Dry Cleaning Co., 10 Cir., 330 F.2d 712, 718.