Petition for enforcement of a National Labor Relations Board order requiring respondent to bargain in good faith, after respondent's objections to the representation election were denied without a hearing. The Board found that, in refusing to bargain, respondent violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1) (1976). Enforcement denied.
Before Lumbard, Mansfield and Meskill, Circuit Judges.
The National Labor Relations Board ("the Board") seeks enforcement of an order issued against Nixon Gear, Inc. ("the Company") on August 27, 1980, directing the Company to bargain in good faith with District Lodge No. 137, International Association of Machinists & Aerospace Workers, AFL-CIO ("the Union"). Following the Union's narrow victory in a representation election, the Company filed objections to certain pre-election conduct on the part of the Union. Without holding an evidentiary hearing upon the Company's objections, the Board granted certification to the Union and subsequently issued the order, enforcement of which is requested here. We deny enforcement of the Board's order.
The Company manufactures and sells custom gears at its facility in Syracuse, New York, where the representation election was held. After the Union filed a petition for certification as the collective bargaining representative for eligible employees at the Company's Syracuse facility, the Board conducted a representation election on December 19, 1979. Of the 45 eligible employees, 44 voted. The result was 23 to 21 in favor of the Union. No ballots were challenged, but the Company filed timely objections to conduct affecting the results of the election. The Company objected, inter alia, that the Union had circulated campaign literature containing material misrepresentations to which the Company did not have adequate time to respond and that the Union had made improper financial and job-related inducements to eligible employees. The Company requested a hearing on its objections.
The Regional Director conducted an investigation of the objections pursuant to section 102.69 of the Board's Rules and Regulations, 29 C.F.R. § 102.69 (1980), but did not hold a hearing.*fn1 Based upon his investigation, the Regional Director recommended to the Board that all of the Company's objections be overruled and that the Union be certified. His investigation revealed the following.
The Company's first two objections alleged that the Union had distributed campaign literature which contained material misrepresentations. At issue were statements made in a handwritten notice captioned "Ask Yourselves Why." The Company contended that the following four paragraphs of this handbill contained material misrepresentations:
Ask yourselves why the company:
SU1H B. Has awarded pay raises to certain individuals and most notably not to known pro-union persons? This smacks of discrimination.
C. Offered $10 hourly to pro-union man to campaign against union? He refused.
D. Would not inform the wife of an injured employee of procedures to follow for benefit of medical coverage, state disability, etc.?
E. Will pay for only 4 days this shut-down instead of 5 days? This surely proves they care for you.
A. 22 (emphasis in original). Copies of the handbill were distributed by the Un ion to employees who attended the Union meeting held on December 15, 1979 and were further distributed at the plant early on the morning of December 18. The Company contended that it first became aware of the literature on December 18, the day before the election.
1 The Regional Director listed the "testimony" concerning the truthfulness of each paragraph.*fn2 The Company produced evidence that the allegedly discriminatory pay raises denounced in Paragraph B were actually awarded pursuant to the Company's established practice of scheduling raises to coincide with employees' anniversary dates with the firm. Furthermore, the Company pointed out that some of the employees who received raises appeared to be actively supporting the Union by, for example, wearing Union buttons. With respect to Paragraph C, the Regional Director apparently misunderstood the Company's position. He stated that the Company admitted that the $10 per hour bribe was offered, but the company claims that it has consistently denied the bribe attempt.*fn3 With respect to Paragraph D, the Company conceded that an employee's wife had not been informed of procedures to follow to obtain benefits for her injured husband, but explained that this had occurred more than 21/2 years earlier under the Company's previous owners. With respect to Paragraph E, the Company conceded that that year there had ...