Petition to enforce order of National Labor Relations Board requiring Bristol Spring Manufacturing Co. to desist unfair labor practices, and to bargain with and provide necessary and relevant information to the union.
Kaufman, Chief Judge, Smith and Meskill, Circuit Judges.
The National Labor Relations Board ("NLRB") petitions this court pursuant to § 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e), for enforcement of an order requiring the Bristol Spring Manufacturing Co. ("the Company") to desist from unfair labor practices and to bargain with, and provide necessary and relevant information to, the United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW Local 1251 ("the Union"). 231 NLRB No. 85 (August 24, 1977). The petition of the NLRB is denied for the reasons specified below.
In January, 1976, the Union filed a representation petition with the Board requesting an election in one employee unit of one of the Company's plants. An election was held on April 2, 1976; 43 individuals voted in favor of union representation, 36 against, and seven ballots were challenged. The Company subsequently filed objections to the conduct of the election, alleging that the Union unlawfully interfered with the election in a number of specified ways.
The Regional Director of the NLRB conducted an administrative investigation of the Company's objections, during the course of which all parties were able to submit documentary evidence. No hearing was held. On July 22, the Regional Director recommended that the Company's objections be overruled in their entirety and that the Union be certified as the bargaining representative of the relevant employees.
The Company excepted to the Director's report, requesting that the election be set aside or, in the alternative, that a hearing be held concerning contested issues of fact. On October 6, a three-member panel of the NLRB issued a Decision and Certification of Representation adopting the findings and recommendations of the Regional Director.
Subsequently, the Company refused to furnish information requested by the Union, and refused to bargain with the Union, arguing that the Union was not properly certified because the election was invalid. It argued further, and for the first time, that an agent of the NLRB involved in the case was subject to a conflict of interest.
The Union filed a complaint with the NLRB pursuant to § 10 of the NLRA, 29 U.S.C. § 160, alleging that the Company was guilty of an unfair labor practice. Subsequently, a three-member panel of the NLRB granted the motion for summary judgment made by the Board's General Counsel, finding the Company in violation of § 8(a)(5) and (1) of the NLRA, 29 U.S.C. § 158(a)(5) and (1). This petition followed.
The Company refuses to bargain with the Union, arguing (1) that improprieties in the conduct of the representation election render that election invalid, and (2) that the Company was improperly denied a hearing on its objections to the conduct of the election.
The Company cites a number of Union practices which it alleges invalidated the representation election as a matter of law. The most serious of these charges, in our view, concerns Union payments to employees prior to the election. The record discloses that cash payments of five dollars ($5.00) were made to each of five employees six weeks before the election, and that payments of twenty dollars ($20.00) were made to four employees approximately four weeks before the election.*fn1 These payments were allegedly made to reimburse employees for time spent giving statements and attending Union meetings.
The Company cites NLRB v. Savair Mfg. Co., 414 U.S. 270, 38 L. Ed. 2d 495, 94 S. Ct. 495 (1973) and the cases cited at footnote 6 of that opinion for the proposition that pre-election benefits of the kind rendered here represent an excessive economic inducement which invalidates representation elections. We do not read these cases, however, to establish a per se rule of invalidity. Rather, the cases establish that cash payments can, under some circumstances, improperly influence an election. Whether improprieties exist in any given case is a factual matter to be determined, in the first instance, by the trier of fact. See NLRB v. Basic Wire Products, Inc., 516 F.2d 261, 264-65 (6th Cir. 1975); NLRB v. Commercial Letter, Inc., 455 F.2d 109, 111 (8th Cir. 1972), order enforced 496 F.2d 35 (8th Cir. 1974).
The respondent's additional claims of improprieties in the conduct of the election are without substantial merit. The NLRB's findings of fact with respect to such claims are clearly supported by substantial, undisputed evidence, ...