Schnackenberg, Kiley and Cummings, Circuit Judges.
National Labor Relations Board, petitioner, requests enforcement of its order requiring Hollywood Brands, Inc., a Minnesota corporation, respondent, to bargain collectively with a union*fn1 as the exclusive bargaining representative of the production and maintenance employees in its business at Centralia, Illinois.*fn2
The order is based in part upon findings made in a representation proceeding under § 9 of the National Labor Relations Act, 29 U.S.C. § 151, et seq. A secret ballot election was held among respondent's employees, who chose the union to represent them. Timely objections to alleged union conduct affecting the election results were filed with the Board, which, upon notice to the parties, held an investigation. The objections were then overruled by the Board, which certified the union.
Thereafter, a complaint, initiated by the union, was issued, alleging that respondent refused to bargain on request, in violation of § 8(a)(5) and (1) of the Act. Respondent's answer denied that the union was the exclusive bargaining representative of its employees and the unfair labor practices. Pursuant to existing Board regulations (29 C.F.R. § 102.24), an order to show cause why disposition should not be made on the pleadings was issued by a trial examiner, who, after considering all responses to the motion, found that, according to established Board policy, no issues required a hearing. Accordingly, the examiner concluded that respondent had refused to bargain. The decision was affirmed by the Board which ordered respondent to cease and desist from engaging in the unfair labor practices found, to bargain with the union, and to post appropriate notices.
Respondent's objections to union conduct prior to the representation election raise the sole issue whether the Board properly found the charged violation. Respondent's counsel has argued here that the facts entitle it to an order setting aside the election or a hearing as to the issues raised by its objections.
The objections were made to two statements in a union circular distributed by the union the night before the election. One statement read:
"There is a story going the rounds that Clayton Martoccio is planning some drastic changes at Hollywood Brands. One of them, we are told, (and we hope it is untrue), is that he plans to get rid of many of the older employees by instituting a series of physical examinations that a lot of workers would be unable to pass. This procedure has been used successfully elsewhere. It is used to get rid of oldtimers and those the company just doesn't want for one reason or another.
"The Union will bitterly oppose any such plan proposed or even contemplated by management. The seniority clause in the union contract would protect employees with years of loyal service and see that they were allowed to continue on the job as long as they could perform their work reasonably well.
" Job Security is the number one aim of the Teamsters for all its members. We urge you to gain real job security by voting 'Yes.' You need the support of the world's strongest union.
You Can't Bargain Alone."
As to this statement, respondent charged the union with "attempting to create an atmosphere of fear and coercion" because it stated "not only an extremely false assertion as though it were a statement of fact, but in addition in a very pointed way threatens the Employer's 'older employees' with discharge if Petitioner did not win the election." Further, respondent asserts that the statement enfetters the employees' free choice of ...