NLRB v. Palmer Donavin & P-D

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 13, 2004
• Docket: 02-2336
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 NLRB v. Palmer Donavin No. 02-2336 ELECTRONIC CITATION: 2004 FED App. 0138P (6th Cir.) Mfg. Co., et al. File Name: 04a0138p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Ronald Mason, MASON LAW FIRM CO., _________________ L.P.A., Dublin, Ohio, for Respondents. Kathleen Lyon, NATIONAL LABOR RELATIONS BOARD, Washington, NATIONAL LABOR RELATIONS X D.C., for Petitioner. ON BRIEF: Ronald Mason, MASON BOARD , - LAW FIRM CO., L.P.A., Dublin, Ohio, for Respondents. Petitioner, - Kathleen Lyon, Julie B. Broido, NATIONAL LABOR - No. 02-2336 RELATIONS BOARD, Washington, D.C., for Petitioner. - v. > _________________ , - OPINION PALMER DONAVIN - _________________ MANUFACTURING CO .; P-D - MIDWEST TRANSPORT , INC., - BOYCE F. MARTIN, JR., Circuit Judge. The National Respondents. - Labor Relations Board seeks enforcement of its order - requiring Palmer Donavin Manufacturing Company and P-D N Midwest Transport, Incorporated to cease and desist their On Application for Enforcement of an Order of the unfair labor practices and to bargain upon request. See In re National Labor Relations Board. Palmer Mfg. Co., 338 NLRB No. 23 (Sept. 30, 2002), No. 8-CA-33323. reprinted at 2002 WL 31257992. For the reasons that follow, we GRANT the Board’s application for enforcement. Argued: March 10, 2004 I. Decided and Filed: May 13, 2004 Palmer Donavin Manufacturing Co., an Ohio corporation, Before: MARTIN and CLAY, Circuit Judges; MILLS, engages in the wholesale distribution of building materials. District Judge.* P-D Midwest Transport, Inc., a wholly-owned subsidiary of Palmer Donavin, engages in the interstate transportation of Palmer Donavin’s goods. Palmer Donavin and P-D Midwest have at all relevant times been affiliated corporations, which share officers, directors, owners and supervisors. On October 19, 2001, the International Brotherhood of * The Hon orable R ichard M ills, United States District Judge for the Teamsters, Local Union No. 377, AFL-CIO, filed a petition Central District of Illinois, sitting by designation.

1 No. 02-2336 NLRB v. Palmer Donavin 3 4 NLRB v. Palmer Donavin No. 02-2336 Mfg. Co., et al. Mfg. Co., et al.

with the National Labor Relations Board seeking certification during the election. The Board, finding that the Respondents as the exclusive bargaining representative of Palmer constituted a single employer and had engaged in unfair labor Donavin’s and P-D Midwest’s (“the Respondents”) driver and practices by refusing to bargain, granted summary judgment warehouse employees. After finding that the Respondents in favor of the General Counsel and issued an order requiring constituted a single employer, the Regional Director found the Respondents to cease and desist their unfair labor that the “petitioned for unit is an appropriate one” and practices and to bargain with the Union upon request. This accordingly directed an election. The Respondents sought case is now before us on the Board’s application for review of the Regional Director’s decision, but the Board enforcement of its order. denied review. II. Following the Board-conducted election in which the Union was approved as exclusive bargaining representative, The Respondents, without filing a cross-appeal for review the Respondents raised timely objections. In their objections, of the Board’s order, repeat their earlier allegations of error the Respondents argued that the Regional Director erred in and argue that this Court should reverse the Board’s decision allowing employees from two separate companies to vote as and order. First, we review the Respondents’ argument that a single unit over the objection of the companies and the Board erred in finding that they constituted a single additionally alleged that the Union engaged in misconduct employer. In reviewing this argument, we will uphold the during the election period.1 The Board’s Regional Director Board’s factual findings and application of law to the facts if conducted an investigation, but–without a hearing–overruled supported by substantial evidence in the record. NLRB v. St. both of the Respondents’ objections. Thus, the Regional Francis Healthcare Centre, 212 F.3d 945, 952 (6th Cir. Director certified the Union as the exclusive bargaining 2000). representative of the Respondents’ driver and warehouse employees. The Board denied review of the Regional “[N]ominally separate business entities [are considered] to Director’s decision. The Respondents subsequently refused be a single employer where they compromise an integrated the Union’s request to bargain. enterprise.” Radio & Television Broad. Technicians Local 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256 Thereafter, the Board’s General Counsel issued a complaint (1965) (citation omitted); see also Swallows v. Barnes & against the Respondents alleging that their refusal to bargain Noble Book Stores, Inc., 128 F.3d 990, 993-94 (6th Cir. with the Union violated Section 8(a)(5) and (1) of the 1997). Four well-established criteria govern this National Labor Relations Act, 29 U.S.C. § 158(a)(5), (1). determination: (1) common ownership, (2) common While admitting their refusal to bargain, the Respondents management, (3) centralized control of labor relations, and (4) challenged the validity of the Union’s certification by interrelation of operations. Id. The Board held that “the repeating their arguments that they do not constitute a single Respondents constitute a single-integrated business enterprise employer and that the Union had engaged in misconduct and a single employer within the meaning of the Act.” In re Palmer Mfg., supra, 2002 WL 31257992, at *2. We agree.

1 Respondent P-D Midwest Transport, as a wholly owned Resp ond ents raised a third objection concerning the Board’s failure subsidiary of Respondent Palmer Donavin, shares common to seal the ballo t box after the election which is not at issue on ap peal. No. 02-2336 NLRB v. Palmer Donavin 5 6 NLRB v. Palmer Donavin No. 02-2336 Mfg. Co., et al. Mfg. Co., et al.

ownership with its parent. Additionally, there is substantial only on the deceptive manner in which representations are overlap in management and officers of the Respondents. P-D made.” Id. exists solely to deliver goods to Palmer Donavin customers, and its delivery trucks bear Palmer Donavin’s company name. We review for an abuse of discretion the Board’s Moreover, they operate from the same facility, have the same determination that the election allowed the employees to health, life insurance and profit-sharing plans, use the same exercise free choice. St. Francis Healthcare Centre, 212 F.3d payroll system, enjoy the same work holidays, and the at 951-52. As discussed, however, in conducting this review, Respondents’ employees occasionally fill in for each other. we will uphold the Board’s factual findings and its Furthermore, as the Board described, they have “formulated application of the law to the facts if supported by substantial and administered a common labor policy; . . . have provided evidence in the record. See id. at 952. Likewise, we review services for and made sales to each other; . . . have shared for an abuse of discretion whether the Board erred in refusing common advertising, . . . phones, sales, and purchasing; and to grant an evidentiary hearing on the issue of whether the have held themselves out to the public as single-integrated representation election was conducted fairly. Id. at 963. The business enterprises.” Id. Thus, from the foregoing, we hold Board abuses its discretion in refusing to grant an evidentiary that the Board’s finding that the Respondents constituted a hearing when the objections and supporting proof offered by single employer is supported by substantial evidence in the the party contesting the election demonstrates the existence of record. material issues of fact as to whether a fair election was held. Id.; Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 119 (6th III. Cir. 1992). “However, we will remand a case for an evidentiary hearing only where ‘an employer’s objections and Second, we address the Respondents’ argument that supporting proofs indicate that there exist material, factual misconduct occurred during the representation election, which disputes with the Regional Director’s report which, if proved, warranted the setting aside of the results. We will also demonstrate that the election should be overturned.’” St. address the Respondents’ related argument that the Board Francis Healthcare Centre, 212 F.3d at 963 (quoting erred in overruling their objections without a hearing. A party Colquest, 965 F.2d at 119). seeking to set aside the results of a representation election bears the significant burden “of demonstrating that the The Respondents alleged that during the election, the Union election was conducted unfairly.” St. Francis Healthcare officials spread a rumor that the Respondents’ counsel, Centre, 212 F.3d at 951. To meet this burden in a claim Ronald Mason, had bribed the company election observer, premised upon an alleged misrepresentation, the objecting Christopher Keiber. An affidavit filed by Attorney Mason party must demonstrate that “the misrepresentation is so reflects the following sequence of events. Before the election, pervasive and the deception so artful that employees will be Attorney Mason and Keiber met in an unlighted hallway unable to separate truth from untruth and . . . their right to a where Keiber gave Mason a list of employees to review. The free and fair choice w[as] affected.” Van Dorn Plastic Mach. list included the names of employees that were going to be Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984). Moreover, challenged. After Attorney Mason reviewed the list, he Van Dorn instructs that an election should not be set aside returned it to Keiber. Apparently, the union observer, Jeff “on the basis of the substance of representations alone, but Gilber, viewed this paper exchange from a distance. Prior to the second session of voting, an agent of the Union spoke No. 02-2336 NLRB v. Palmer Donavin 7 8 NLRB v. Palmer Donavin No. 02-2336 Mfg. Co., et al. Mfg. Co., et al.

with Attorney Mason and Respondents’ President, Ron As the parties contesting the representation election results, Calhoun, and told them that “three witnesses” had seen the Respondents had the burden of demonstrating not only Mason pay money to Kieber and that Calhoun “needed to that a pervasive misrepresentation occurred that was so remove the stench from this election as soon as possible.”2 artfully drawn that the voters could not separate “truth from After the voting had concluded, at the Union agent’s request, untruth,” Van Dorn, 736 F.2d at 348, but also that the Kieber produced the piece of paper which confirmed that it misrepresentation “interfered with the voter’s exercise of free was only a list of employees and the Union agent publicly choice to an extent that the conduct materially affected the acknowledged this fact. The Respondents argued that the results of the election,” Colquest, 965 F.2d at 120. In this Union agent’s statements demonstrated that the Union had case, the only evidence that the Respondents offered spread false rumors during the election that bribery had regarding the alleged misrepresentation was the self-serving occurred and that this conduct warranted the setting aside of affidavit of their counsel, Attorney Mason. Not only does this the election. single affidavit fail to depict an egregious example of a pervasive, deceitful misrepresentation, it also fails to The Regional Director, after an investigation, found that the demonstrate that the alleged misrepresentation “interfered Union agent’s statements “amount[ed] to nothing more than with any voter’s exercise of free choice.” Id. Indeed, as an unfounded, misrepresentation of fact by one party’s agent discussed, the Union official accused of instigating the during the course of the election” and that they did not “rise misconduct was not even named in the affidavit. to the level of objectionable conduct warranting the setting aside of the election.” Moreover, the Regional Director The Respondents, attempting to excuse their lack of concluded that there existed no evidence to demonstrate that evidence, argue that it could not prove the extent and effect of the voters were aware of the bribery allegation and certainly the misconduct without a hearing because it could not compel there existed no evidence that this alleged misconduct testimony from the employees or Union officials. We find “created an overall atmosphere which impaired a fair and free this argument utterly unpersuasive. First, it completely election.” Our review of the record convinces us that the ignores that it was their burden to demonstrate “that the Board did not abuse its discretion in finding that the alleged election was conducted unfairly.” St. Francis Healthcare misconduct did not warrant the setting aside of the Centre, 212 F.3d at 951. Second, it also ignores that it was representation election and that the Respondents had failed to their burden to come forward with evidence that would demonstrate the existence of material issues of fact warrant conducting a hearing in the first instance. See warranting an evidentiary hearing. Colquest, 965 F.2d at 119. Third, even if we accept the Respondents’ argument that the employees and Union officials would not voluntarily give evidence–despite the lack of any evidence to suggest that the Respondents even attempted to take advantage of such voluntary 2 procedures–this does not explain their failure to offer the The affidavit does not name the Union agent; rather, the affidavit affidavit of someone other than their own attorney, such as, refers to the Union agent, as the Unio n organizer, “name unknown.” for example, their President, Ron Calhoun. W hile, the Re gional Dire ctor refers to the agent as Ric hard Kepler, it is not evident from the record at what point in the proceedings the Union agent was identified as such. No. 02-2336 NLRB v. Palmer Donavin 9 Mfg. Co., et al.

Finally, we find Van Dorn particularly instructive in this case. Van Dorn, as discussed, instructs that we should not set aside an election’s results on the basis of representations alone, but “only on the deceptive manner in which representations are made.” Van Dorn, 736 F.2d at 348. Here, Respondents have not alleged that the Union made the statement about bribery in a deceptive manner, only that the substance of the statement was false. For this independent reason, we find that the Board did not err in overruling the Respondents’ objection to the election based upon the alleged Union rumor. In sum, we find that the Board did not err in finding that the Respondents constituted a single employer and in refusing to set aside the representation election’s results because the Respondents did not meet their burden under Van Dorn. Additionally, we find that the Board did not err in overruling the Respondents’ objections without the benefit of a hearing because the Respondents did not meet their burden of demonstrating that material issues of fact existed as to the fairness of the representation election. See id. at 963; Colquest, 965 F.2d at 119. Accordingly, we GRANT the Board’s application for enforcement of its order.