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    Baumritter Corporation v. National Labor Relations Board, 386 F.2d 117, 1st Cir. (1967)

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    This document is a court case regarding an employer's refusal to bargain with a union that was certified as the collective bargaining representative after an election. The employer objected to the election results, claiming that certain statements in a union leaflet distributed before the election and actions of a National Labor Relations Board agent impaired employees' freedom of choice. The court upheld the NLRB's ruling that the employer did not provide sufficient evidence that employee free choice was likely impacted, and enforced the NLRB's order finding the employer violated labor laws by refusing to bargain.

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    Baumritter Corporation v. National Labor Relations Board, 386 F.2d 117, 1st Cir. (1967)

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    28 views5 pages
    This document is a court case regarding an employer's refusal to bargain with a union that was certified as the collective bargaining representative after an election. The employer objected to the election results, claiming that certain statements in a union leaflet distributed before the election and actions of a National Labor Relations Board agent impaired employees' freedom of choice. The court upheld the NLRB's ruling that the employer did not provide sufficient evidence that employee free choice was likely impacted, and enforced the NLRB's order finding the employer violated labor laws by refusing to bargain.

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    Filed: 1967-12-08 Precedential Status: Precedential Citations: 386 F.2d 117 Docket: 6916_1

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    This document is a court case regarding an employer's refusal to bargain with a union that was certified as the collective bargaining representative after an election. The employer objected to the election results, claiming that certain statements in a union leaflet distributed before the election and actions of a National Labor Relations Board agent impaired employees' freedom of choice. The court upheld the NLRB's ruling that the employer did not provide sufficient evidence that employee free choice was likely impacted, and enforced the NLRB's order finding the employer violated labor laws by refusing to bargain.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    28 views5 pages

    Baumritter Corporation v. National Labor Relations Board, 386 F.2d 117, 1st Cir. (1967)

    Uploaded by

    Scribd Government Docs
    This document is a court case regarding an employer's refusal to bargain with a union that was certified as the collective bargaining representative after an election. The employer objected to the election results, claiming that certain statements in a union leaflet distributed before the election and actions of a National Labor Relations Board agent impaired employees' freedom of choice. The court upheld the NLRB's ruling that the employer did not provide sufficient evidence that employee free choice was likely impacted, and enforced the NLRB's order finding the employer violated labor laws by refusing to bargain.

    Copyright:

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    Download as PDF or read online from Scribd
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    of 5

    386 F.

    2d 117

    BAUMRITTER CORPORATION et al., Petitioners,


    v.
    NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 6916.

    United States Court of Appeals First Circuit.


    Dec. 8, 1967.

    Alan J. Levenson, Portland, Me., with whom Levenson & Levenson,


    Portland, Me., was on brief, for petitioner.
    Richard Adelman, Washington, D.C., Attorney, with whom Arnold
    Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel,
    Marcel Mallet-Prevost, Asst. Gen. Counsel, and Michael N. Sohn,
    Washington, D.C., Attorney, were on brief, for respondent.
    Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
    McENTEE, Circuit Judge.

    This petition to review and set aside an order of the Labor Board stems from a
    representation election in which petitioners' employees chose the union1 as their
    collective bargaining representative. Shortly thereafter, petitioners (hereinafter
    'the company')2 filed objections to the election on the ground that certain preelection conduct on the part of the union and a Board agent rendered the
    election and subsequent union certification invalid.3 The company also
    requested that the Board grant a hearing on its objections.4

    The Board overruled the company's objections, denied its request for a hearing
    and certified the union as bargaining representative.5 The company refused to
    bargain with the union. Thereafter, upon complaint filed, the Board found that
    this refusal violated sections 8(a)(5) and (1) of the Act and entered its order
    against the company.6 This petition followed. The Board countered with a
    request that its order be enforced in full. No jurisdictional issue is presented.7

    The company admits its refusal to bargain but seeks to justify it by challenging

    the validity of the election and subsequent union certification. As its first
    ground of attack the company points to a union leaflet allegedly containing
    material false statements mailed to the company employees at a time so close to
    the election that it claims the true facts could not be brought to their attention.8
    Specifically it objects to the following four representations which it contends
    interfered with the employees' freedom of choice: (1) that since the present
    management of the company came in, 'incentive rates were slashed when you
    made money, more work was piled on, forcing some of your fellow employees
    to quit, working conditions deteriorated'; (2) the company does not pay for jury
    duty; (3) the employees pay for their own insurance and (4) the company also
    objected to the side-by-side comparison of union wages and benefits with those
    of the company because the source of the union items listed was unidentified.

    In reply, the company promptly posted notices on the bulletin boards at all
    three plants9 which read as follows: 'Another Union Lie. This Co. Does Pay For
    Jury Duty. * * * And Another Union Lie. Your Co. Pays 66% Of Your
    Insurance.' The company objects that on the afternoon before the election one
    Hirsch, a field examiner for the Board, ordered these notices removed and
    personally removed one of them. It contends that this conduct violated the legal
    rights of both employer and employees10 and warranted setting aside the
    election.

    The union leaflet was prepared from information obtained at union organization
    meetings and from a company booklet distributed to new employees. In
    accordance with the administrative investigation the Board found that the
    statements that incentive pay was slashed and that the company did not pay for
    jury duty were untrue and that the assertion that the employees pay for their
    insurance was ambiguous, but that this did not interfere with the employees'
    freedom of choice.11 The Board also adopted the Regional Director's findings
    that the union's comparison of benefits was factual in character, relevant,
    accurately represented contracts that the union had with other employers in the
    area and did not constitute a misrepresentation.

    We note that the company does not challenge this factual finding. Rather, it
    objects to the union's 'last minute' comparison of wages and benefits as
    'ambiguous and misleading.' We think this is a somewhat technical objection.
    Reading the comparison from the standpoint of a company employee in the
    midst of an election campaign, we cannot say that it was misleading either in
    form or substance. It merely recited in graphic form what benefits this union
    claims it had gained for its members in other plants in the area and asked these
    employees to compare them with the nonunion benefits they had. The union did
    not state that in any single contract it had achieved all of the benefits listed. We

    cannot say that this campaign propaganda was unfair or improper.


    7

    We turn now to the other representations in the leaflet. To be sure, the


    statements with reference to incentive and jury duty pay were untrue and the
    representation that the employees paid for their own insurance, to say the least,
    was ambiguous, but in and of themselves these statements are not enough to set
    aside the election. It is too well established to require citation that
    representation elections will not be lightly set aside. A certain degree of
    inaccuracy and ambiguity is recognized as indigenous to campaign propaganda.
    N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456, 458, 3 A.L.R.2d 879 (1st
    Cir. 1962). Also, as we said in that case at 461 the burden is on the objector to
    the election to show it was 'sufficiently likely' that the employees were misled
    so 'that it cannot be told whether they were or were not.' From our examination
    of the record, we do not think the company met its burden here. The matter of
    whether the company slashed the incentive pay rates or paid for jury duty or
    insurance certainly was for the most part within the special knowledge of the
    employees themselves and they were in a position to recognize and evaluate
    these statements as election propaganda. Moreover, the company took
    advantage of its opportunity to correct two of the misstatements by posting
    specific replies at all three plants almost immediately after the leaflets were
    distributed. These notices remained posted up to the morning of the election.

    In support of its position that the union leaflet impaired the employees' freedom
    of choice, the company relies on Trancoa, supra, but that case is clearly
    distinguishable on its facts. There, among other things, the union made false
    claims as to specific contracts it had and as to certain dangers to employees
    from radioactive materials used in the plant. These claims could not be properly
    evaluated by the employees. In addition, the company was not able to reply to
    the union's claims until about ten minutes before the election. This is a far cry
    from the situation here.

    Nor do we think it was at all likely that the agent's conduct just prior to the
    election violated the rights of either employer or employees, interfered with the
    employees freedom of choice or had any substantial effect on the outcome of
    the election. The administrative investigation showed that three days before the
    election this field examiner replaced a defaced election notice and ripped down
    three newspaper cartoons from a company bulletin board without protest from
    company officials who were present. Also, on the day before the election this
    Board agent saw one of the company notices replying to the union's leaflet on a
    bulletin board along the line of march to the polling area and ordered it
    removed, but when the company protested that similar signs were posted in all
    three plants, it was agreed that all these notices would remain posted until the

    morning of the election. Early on that morning the agent personally removed
    one of these notices. On none of the occasions above mentioned were any
    employees of the company present.
    10

    Finally, the company complains that it was unlawfully deprived of a hearing on


    its objections. Under the rules of the Board, objections to representation
    elections are determined by administrative investigation as was done in this
    case. Post-election hearings are granted only where 'substantial and material
    factual issues exist which can be resolved only after a hearing.' 29 C.F.R.
    102.69(c). The record shows that the company had full opportunity to offer
    evidence in the administrative investigation in support of its objections and that
    this evidence was considered by the Regional Director. In requesting the Board
    for a hearing on the representation proceeding the company did not propose to
    offer any newly discovered or previously unavailable evidence. It did not raise
    any new factual issues but merely persisted in its previous contentions
    principally with reference to the union's comparison of benefits and the conduct
    of the Board's agent-- objecting not to the findings but to the legal conclusions
    reached. Nor was the company entitled to relitigate these same issues at the
    unfair labor practice stage of the case. The Board is bound by its own prior
    determinations in the representation proceedings in the absence of newly
    discovered evidence. Hence, the Board was not required to grant a hearing and
    did not abuse its discretion in denying these requests. N.L.R.B. v. Tennessee
    Packers, Inc., Frosty Morn Division, 379 F.2d 172, 178 (6th Cir. 1967);
    N.L.R.B. v. Sun Drug Co.,359 F.2d 408, 414 (3d Cir. 1966).

    11

    Petition to review and set aside the Board's order is denied and said order may
    be enforced.

    District Lodge No. 65, International Association of Machinists & Aerospace


    Workers, AFL-CIO, also known as I.A.M. Out of 322 valid votes counted 207
    were cast for the union and 115 were cast against it

    Petitioners, parent and subsidiary, operate three furniture factories in Mayville,


    Falconer and Frewsburg, New York. It is undisputed that the production and
    maintenance employees in all three plants, the only employees involved in the
    election, constitute an appropriate unit

    The company's objections were referred to the Regional Director who made an
    administrative investigation. Witnesses were interviewed, sworn testimony
    taken and the parties were afforded an opportunity to present testimony. The
    Regional Director found that the company's objections 'do not raise substantial

    or material factual issues with respect to conduct allegedly affecting the


    outcome of the election,' and recommended that they be overruled
    4

    It did not request a hearing on its objections until after the Regional Director
    filed his report. In excepting to this report the company alleged for the first time
    that its objections raised substantial and material issues warranting a hearing

    In adopting the Regional Director's recommendations the Board ruled that the
    'Employer's exceptions (to the Regional Director's Report) raise no material
    issues of fact or law warranting reversal of the Regional Director's
    recommendations.'

    In so finding, the Board adopted the decision of the trial examiner who granted
    summary judgment in favor of the General Counsel on the ground that the
    company made no representations that the evidence it would present at a
    hearing was previously unavailable or newly discovered; that this being the
    case, he was bound by the Board's findings on the representation proceeding
    and hence there was no litigable issue before him

    Although the alleged unfair labor practices occurred in New York where the
    company is incorporated and transacts business, it asserts that it also transacts
    business in Massachusetts and that this court has jurisdiction under section 10(f)
    of the Act. The Board states that it is without knowledge concerning the
    assertion that the company transacts business in Massachusetts but accepts the
    company's statements to that effect

    The leaflet was mailed on April 13, 1966, and the election was held on April
    15, 1966, under the supervision of the NLRB Regional Director

    Those notices were posted on the evening of April 13th at the Mayville plant
    and at the Falconer and Frewsburg plants on the morning of April 14, 1966

    10

    Specifically, the company contends that this conduct violated the First
    Amendment as well as sections 7 and 8(c) of the National Labor Relations Act

    11

    It did appear, however, that rumors were circulated among the employees that
    the incentive pay rates had been changed to their detriment. The investigation
    also revealed that since mid 1965 the company has given jury duty pay to
    employees who have completed a three months trial period, but the company
    booklet makes no mention of this and it was not generally publicized. As to the
    insurance, it was established that the company pays 66% Of a group insurance
    program and the employees pay the balance

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