GEWIN, Circuit Judge:
Howell Refining Company petitions this court to review and set aside an order of the National Labor Relations Board issued against it on May 10, 1967. The order requires the company to cease and desist from unfair labor practices, to bargain with the Oil, Chemical and Atomic Workers International Union, and to post appropriate notices. The Board cross-petitions for enforcement of its order. We deny enforcement and remand the case for further proceedings.
To place the questions presented in context we shall summarize the events leading up to the Board's May 10 order. On March 23, 1966, the union filed a representation petition with the Board requesting certification as the bargaining agent for a unit consisting of all truck and transport drivers, truck and auto mechanics, and production and maintenance employees in the company's San Antonio and Corpus Christi, Texas, plants. The company contended that
An election in June resulted in a union victory, thirty-eight votes being cast for the union, eighteen against the union, and four challenged ballots. The company filed timely objections to the election, alleging that conduct attributable to the union had improperly influenced its outcome. It also objected again to the Regional Director's determination of the appropriate unit. Additionally, the company attacked the "names and addresses" rule established by the Board in Excelsior Underwear, Inc.
Despite the certification by the Board, the company refused to recognize or bargain with the union. On December 15, 1966, in response to the union's charges, a complaint issued against the company alleging violations of section 8(a) (1) and (5) of the National Labor Relations Act.
The Trial Examiner found that the case was not mooted by subsequent negotiations between the parties. He further concluded that the issues raised by the company had already been decided in the representation proceeding; that he was bound by those determinations; and that, consequently, no hearing was necessary in the absence of newly discovered or previously unavailable evidence. Accordingly, the Examiner found that the company had violated section 8(a) (1) and (5) of the Act and granted the motion for summary judgment. The Board affirmed the Examiner's ruling,
The company contends that the Board's order should be vacated because (1) the Board abused its discretion in determining that a multi-plant unit was appropriate; (2) the Board erred in failing to find that the disclosure of the names and addresses of employees to the union invalidated the election; (3) the Board erred in failing to find that the union and its supporters engaged in preelection conduct that rendered a free expression of choice impossible; and (4) the Board's refusal to grant a post-election hearing on the company's claim of unlawful union conduct constituted a denial of due process.
We have given careful consideration to each of the above contentions and we have reviewed the entire record. We find no abuse of discretion in the Board's determination that a multi-plant bargaining unit is appropriate. We also find that the submission by the company of employees' names and addresses as required by the Excelsior rule does not invalidate the election. However, we do not reach the question of whether there was interference with the free choice of the employees because we conclude that this question should not have been decided by the Board summarily and that the company should have been granted a hearing. Consequently, the order of the Board is set aside and the case is remanded to the Board for a hearing on the company's claim that conduct attributable to the union generated such an atmosphere of fear, concern, and confusion among the employees that a free expression of choice in the election was rendered impossible.
A considerable amount of evidence was presented by the parties on the multi-plant-unit question at the hearing held during the representation proceeding. The Board considered all the pertinent facts and determined that a multi-plant unit was appropriate in the instant case. The company asserts that this decision of the Board was in violation of section 9(c) (5) of the National Labor Relations Act which provides:
As clearly appears from its terms, this provision only prohibits the extent of organization from being the controlling factor in determining the appropriate unit.
The company contends that the election should have been set aside because
The Board's Excelsior rule was adopted to guarantee all participants in the election access to the electorate and to ensure an informed electorate. The rule eliminates the time-consuming process of investigating challenges to voter eligibility on the eve of elections solely because of a lack of knowledge of voters' identity.
The company's allegation that conduct attributable to the union destroyed the laboratory conditions under which the election should have been conducted and improperly influenced its outcome may be divided for purposes of discussion into three parts: (1) preelection conduct of union supporters, (2) a union campaign letter, and (3) conduct of union supporters at the polls.
In support of its contention that the union had engaged in coercive preelection conduct, the company submitted the affidavits of four employees which alleged various incidents involving threats of physical harm, damage to personal property, and an intimidating nighttime visit by two men to an employee's apartment. Affidavits of five other employees were submitted which alleged that the acts and conduct in question readily came to the attention of other employees and were the subject of discussion throughout the company's San Antonio plant. The affiants were unable to identify all of the persons who engaged in the alleged coercive conduct, but the affidavits did disclose that certain of the alleged acts were engaged in by six named individuals, three employees and three former employees. The company contended that these named individuals were acting as agents or representatives of the union, or that they held themselves out as agents or representatives of the union. Evidence was presented by the company to the Regional Director to support its claim of agency.
The company also alleged that the union had distributed, approximately thirty-six hours before the election, a letter which bore the signature of Carl S. Anderson, President of Local 4-747, and which contained a serious and misleading statement. The statement is as follows:
The company contended that the employees understood and interpreted this statement as referring to an unfair labor practice charge involving three discharged employees, when in fact the only proceeding involving the company before the Board during the course of the election campaign was the company's objection to the multi-plant bargaining unit. In support of these allegations, the company furnished the Regional Director with the affidavits of ten employees who alleged that they construed the union's statement as referring to the unfair labor practice case. The company immediately attempted to correct the alleged misrepresentation by posting and distributing to its employees a written notice on the afternoon prior to the election, which was scheduled to begin at 7:30 the following morning. However, the company contended that only about half of its employees were on duty at the time the notice was posted and distributed.
The company's remaining objection concerns the appearance at the polls of three discharged employees who were permitted to vote pending disposition of claims that their discharge was unlawful. Contrary to procedure agreed upon by the company and the Board agent, the three discharged employees circulated among and conversed with other employees on the premises for approximately fifteen minutes before casting their ballots. Affidavits were submitted by seven employees to this effect. One employee submitted an affidavit stating that one of the three had solicited his vote for the union. These three employees are three of the six named individuals who, the company alleged, engaged in coercive conduct as union agents prior to the election.
After an ex parte investigation, the Regional Director issued his Supplemental Decision. He found that the evidence did not adequately establish that the six named individuals were agents on behalf of the union; at most, the evidence showed that they were staunch supporters of the union. The Director noted that no evidence was presented or adduced to show condonation or adoption by the union of any of the alleged threats, and that the union specifically denied that any of the named individuals was authorized to act as its agent. He found that all of the alleged threats were denied by the employees to whom they were attributed, and that the alleged conduct attributed to unidentified parties was of such a minimal nature that it would not warrant setting aside the election even if the identity of the party or parties was known. On the basis of these findings, the Regional Director concluded that the employees named did not engage in a course of conduct, as agents for the union or otherwise, which destroyed the atmosphere necessary to the exercise of a free choice in the election. Accordingly, the company's allegations regarding preelection conduct were held to be without merit. Moreover, even assuming that Anderson was an agent of the union and that the statement objected to was inaccurate or misinterpreted, the Director thought it not so misleading as to prevent the exercise of free choice. Therefore, the company's objections to the campaign letter were concluded to be without merit. Having already found that the three discharged employees were not union agents, the Regional Director found that electioneering by discharged employees near polling places during an election was not a basis for setting aside an election. Consequently, the company's final objection to the election was rejected.
The company strongly urges that it was entitled to a hearing on the issue of whether improper conduct attributable to the union influenced the outcome of the election. There is no statutory provision for post-election hearings. Such a hearing is granted by the Board only if it appears that the objections to the election are based upon allegations which have a basis in law and support in evidence and that "substantial and material
However, the Board contends that the Regional Director, in making his determination that the free choice of employees was not abridged, credited the company with all of its factual allegations, that is, the Director assumed that the individuals named were agents and that they engaged in the coercive conduct described by the various affidavits. Thus the Board urges that no factual dispute is present.
Furthermore, the Regional Director apparently considered the company's objections to the election separately rather than as a whole in determining whether employees were prevented from exercising a free choice in the election. However, each objectionable act should not be considered as standing alone but consideration should be given to the combined or cumulative effect of all of them.
We think, therefore, that the Board should have held a hearing to determine the material factual issues presented. Accordingly, enforcement of the Board's order is denied and the case is remanded for a full hearing as to the validity of the election and certification.
Enforcement denied and the case is remanded.