AUTOMATION & MEASUREMENT DIV., THE BENDIX CORP. v. N. L. R. B. Nos. 17771, 18038.
400 F.2d 141 (1968)
AUTOMATION AND MEASUREMENT DIVISION, THE BENDIX CORPORATION, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.
United States Court of Appeals Sixth Circuit.
August 30, 1968.
John O. Henry, Dayton, Ohio, for petitioner; Hubert A. Estabrook, Francis X. Lee, Dayton, Ohio, on brief; Estabrook, Finn & McKee, Thomas B. Kreutz, Ernest T. Hix, Dayton, Ohio, of counsel.
Gary Green, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Corinna Lothar Metcalf, Atty., N.L.R.B., Washington, D. C., on brief.
Before WEICK, Chief Judge, and PHILLIPS and McCREE, Circuit Judges.
WEICK, Chief Judge.
In these consolidated cases, Bendix seeks a review of two decisions and orders of the Board. The first one found that Bendix's subsidiary, The Sheffield Corporation,
The principal issue in the cases is the validity of elections conducted by the
Prior to the second election Bendix moved for a supplemental hearing and for the opportunity to offer evidence on the issue of the exclusion from the bargaining unit of about 60 job leaders. These job leaders had always been included in the voting units in previous proceedings.
Bendix, prior to the second election, filed with the Regional Director an unfair labor practice charge against the Union alleging that during the campaign for the first election the Union, in a handbill distributed to employees, had falsely stated that "the United States Government guarantees you that you will lose no benefits except those you wish to change" if you vote for the Union. The Regional Director dismissed the charge. The General Counsel for the Board sustained the Regional Director on March 4, 1965.
The second election was conducted on February 17, 1965. Job leaders were excluded from voting in sufficient numbers to have affected the results of the election. After conducting hearings on challenged ballots, the result was as follows:
No Union — 266 Union — 278 Difference — 12 Remaining uncounted ballots — 11
The Company filed objections to the election again raising the issue of the exclusion of job leaders from the bargaining unit and also the misrepresentation by the Union to the employees in asserting that the United States Government and the National Labor Relations Board guaranteed certain minimum benefits. The Regional Director overruled the objections and ordered certification of the Union. The Company contended that the second election was illegal and refused to bargain with the Union.
The Company did not welcome the advent of the Union. Unsuccessful efforts had been made to unionize the plant since 1945. The 1964 campaign was a heated one with charges and counter-charges. The Union circulated among the employees about 60 handbills. The Company sent out ten letters and one copy of its publication "The Sheffield Gazette" to its employees.
The Union emphasized the benefits of Union membership while the Company endeavored to make clear the detriments. The Company also pointed out the many benefits which the employees had received from the Company over the years without a union.
The following excerpt from the Supplemental Decision and Direction of Second Election indicates the real reasons of the Regional Director for setting aside the first election.
But the Union had responded to the Company's letter of June 8th in its handbills of June 12 and July 13, 1964, as follows:
The handbill of June 12th was a little more than one month before the election and the handbill of July 13th was two days prior thereto.
In a letter dated December 16, 1964, the Union in referring to the order of the Board setting aside the first election stated:
The Company's letter of June 8, 1964, stated that bargaining was a two-way street and that it was possible that wages and benefit programs would be altered upward or downward, created or eliminated as a result of this bargaining, and that bargaining would start from zero.
Contrary to the Board's ruling, we see nothing threatening or coercive for the Company to predict the possibilities or probabilities which might result from the collective bargaining process or from plant unionization. In the recent case of N.L.R.B. v. TRW-Semiconductors, Inc., 385 F.2d 753, 759-760 (9th Cir.1967) Circuit Judge Duniway, who wrote the opinion for the Court, said:
See also: N. L. R. B. v. Herman Wilson Lumber Co., 355 F.2d 426 (8th Cir. 1966); Texas Industries, Inc. v. N. L. R. B., 336 F.2d 128 (5th Cir.1964); N. L. R. B. v. Laars Engineers, Inc., 332 F.2d 664 (9th Cir.1964), cert. den. 379 U.S. 930, 85 S.Ct. 325, 13 L.Ed.2d 342, (1964).
In this Circuit we have upheld the right of free speech in a Union organizational campaign and stated that its exercise should not be narrowly restricted. N. L. R. B. v. Uniform Rental Serv., 398 F.2d 812 (6th Cir. 1968); N. L. R. B. v. Hobart Bros. Co., 372 F.2d 203 (6th Cir. 1967; Surprenant Mfg. Co. v. N. L. R. B., 341 F.2d 756 (6th Cir.1965); Union Carbide Corp. v. N. L. R. B., 310 F.2d 844 (6th Cir.1962).
In Trent Tube Co., Subsidiary of Crucible Steel Co., 147 N.L.R.B. 538, 540 (1964), the Board in overruling the Regional Director's conclusion that an employer's letter which stated "bargaining starts from scratch" was coercive considered "not only the contents therein but their timing, the opportunity for petitioner to respond, and its actual responses thereto."
In the present case the Regional Director, in reaching his conclusion, stated that "* * * Employer's letters to its employees, taken as a whole, interfered with the employee's freedom of choice and, hence, with the conduct of the election."
The Regional Director did not follow the admonition of the Board in Trent
The Union had five weeks time to make a response. As previously pointed out, the Union made vigorous responses with statements that constituted misrepresentations of material facts. The United States Government and the N. L. R. B. do not guarantee employees that the collective bargaining process starts from "where you presently are in wages, insurance, pensions, profit sharing and all other conditions of employment" and "that there is only one way to go and that is up." Nor did the Board give its word to that effect. Nor did the Government guarantee "that you will lose no benefits except those you wish to change."
In our opinion the Board erred in considering the Company's campaign statements in isolation from those of the Union. The statements made by both should be considered by the Board after which a reasoned determination could be made as to whether either interfered with the employee's freedom of choice.
The right of free speech guaranteed by Section 8(c) of the Act applies to employers and labor unions alike. There is no basis for adopting a narrow restrictive rule for one party and a liberal one for the other.
The misrepresentations made by the Union did not prejudice the Company in the first election as the Union lost. But they were repeated in part in the second election which the Union won.
In our judgment, the minutes of the factory Suggestion and Complaint Committee do not support the Board's finding that the Company promised benefits to the employees if they rejected the Union.
Considering the record as a whole the findings of the Board of Section 8(a) (5) and (1) violations are not supported by substantial evidence.
The first election held on July 15, 1964, was a valid election. The Board erred in setting it aside. The second election conducted within one year of the first election was invalid. The certification of the Union as collective bargaining representative made by the Regional Director was likewise invalid. The Company was under no duty to recognize or bargain with the Union. N. L. R. B. v. Blades Mfg. Co., 344 F.2d 998, 1004 (8th Cir.1965).
In view of this disposition of the first election, it is unnecessary to determine other questions raised concerning the second election.
The remaining issue in the case is the propriety of the Board's action in ruling that about sixty of the Company's hourly-paid employees taken from a large variety of job classifications with varying job duties were job leaders, and should be excluded from the bargaining unit as supervisors. The indiscriminate disenfranchisement of such a large number of employees is a serious matter which, in our judgment, required more consideration than was given to it in this case.
It should be observed that in all five prior representation cases the so-called job leaders were not treated as supervisors and were included in the bargaining units. The Company did not classify the job leaders as supervisors
The Company had left to the Board the determination of the appropriate unit but this did not include any concession with respect to the job leaders. On the contrary, the Company strenuously objected to the exclusion of the job leaders throughout the proceedings and sought a further hearing to offer additional evidence as to the job duties of the employees excluded but its requests were denied.
The only evidence on the subject was the testimony of James M. Schaefer, Director of Personnel. None of the employees who were affected by the ruling were called to testify. Schaefer testified on direct examination as follows:
On cross-examination he testified:
In our judgment this testimony was not sufficient to justify the mass exclusion of the hourly-paid employees from the voting unit. Nor does it demonstrate that they share the powers of management. When motion was made to take additional evidence on the subject it should have been granted.
In NLRB v. Southern Bleachery & Print Works, Inc., 257 F.2d 235 (4th Cir.1958), cert. denied 359 U.S. 911, 79 S.Ct. 588, 3 L.Ed.2d 575 (1959), the Court said:
To the same effect is NLRB v. Griggs Equip., Inc., 307 F.2d 275 (5th Cir. 1962).
In Precision Fabricators, Inc. v. NLRB, 204 F.2d 567, 569 (2d Cir.1953), the Court, in referring to a leadman, said:
Whether or not an employee is a supervisor is a question of fact. The determination of the issue by the Board is conclusive only when supported by substantial evidence. Section 10(e) of the Act, 29 U.S.C. § 160(e); Peoples Service Drug Stores, Inc. v. N. L. R. B., 375 F.2d 551, 554 (6th Cir.1967).
We are of the view that adequate consideration was not given to this issue by the Board. As we previously pointed out, about sixty (60) of the job leaders of different classifications were all taken out of the voting unit without calling a single one of them as a witness. We are not suggesting that all of them should have been called to testify but at least representatives of some of the various classifications should have been heard. When the Company moved to take additional testimony, this motion should have been granted particularly since this had not been an issue between the Company and the Union, both of whom wanted the leaders included in the unit, but was between the Board and the disqualified employees who were not heard or represented.
The job leaders were disqualified at the representation hearing. At that time the specific duties and functions of the job leaders were not developed in much detail either by the Union or the Company no doubt because it was not in issue between them. The Company had no reason to believe at the time of the hearing that the job leaders would be excluded on the initiative of the Board because they had always been included in prior representation cases.
Just to conclude, as did the Regional Director, that all these job leaders of different classifications exercise independent judgment in responsibly directing the work of other employees was not sufficient to qualify them as supervisors. The particulars in which independent judgment was exercised should be articulated.
In another representation hearing both the Company and the Union will have the opportunity to offer additional evidence on this subject from which a better reasoned determination may be made.
The order of the Board is denied enforcement in each case.
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