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National Labor Relations Board v. Janler Plastic Mold Corp.


November 30, 1972


Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge, and GORDON, District Judge*fn1

Per Curiam: This case arises upon the National Labor Relations Board's application for enforcement of an order requiring respondent Janler Plastic Mold Corporation to bargain collectively with the Union*fn2

Janler is engaged in the manufacture and sale of plastic molds at its plant in Chicago, Illinois. On February 12, 1970, the Union filed a petition with the Board seeking to represent 42 of Janler's employees. An election was conducted under the auspices of the Board on April 3, 1970, which resulted in 21 ballots being cast for the Union and 20 votes opposing its representation. A few days thereafter, Janler filed its objections to the election. The gravamen of the objections was "that the totality of the Union's conduct created such an atmosphere of fear, confusion and doubt that the intelligent, uncoerced exercise of individual employee franchise was made impossible" (Respondent's Br. 2; Objection VI).

In late May 1970, the Board's Regional Director for the Thirteenth Region issued a report based on his investigation of Janler's objections. He recommended that the objections be overruled in their entirety and that the Union be certified. Janler filed exceptions to this report, and a few months thereafter the Board, over Chairman Miller's dissent*fn3, issued its decision upholding the Regional Director and certifying the Union as the employees' bargaining representative.

A fortnight thereafter, Janler refused to bargain with the Union. This resulted in the filing of an amended charge by the Union and the issuance of a complaint by the Board's General Counsel charging Janler with refusing to bargain in violation of Section 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. ยง 158(a) (5) and (1) ). Janler's defense was that the certification was invalid for the reasons urged in its objections to the election. With Chairman Miller again dissenting, the Board granted the General Counsel's motion for summary judgment without conducting a hearing on the issues in Janler's defense and found that Janler had violated Section 8(a) (5) and (1) by its refusal to bargain with the Union. The Board's order required Janler to bargain with the Union and to post appropriate notices. Because the Company is continuing in its refusal to bargain, the Board has requested judicial enforcement of its order.

Janler urges us to remand this case to the Board with an order to conduct a hearing with respect to union misconduct allegedly occurring during the campaign prior to the April 1970 election. In National Labor Relations Board v. Hollywood Brands, Inc. , 398 F.2d 294, 297 (7th Cir. 1968), this Court reiterated the rule that evidentiary hearings are required where allegations in objections raise substantial and material issues of fact. In the present case, it is our conclusion that Janler presented sufficient factual allegations and supporting evidence to warrant a hearing, as required by our decisions and as well by Section 102.69(c) and (e) of the Board's rules and regulations, Series 8, as amended*fn4

The Board refused to grant Janler a hearing or oral argument, and the Regional Director's report was based on his ex parte administrative investigation.Accordingly, there was never a hearing at which the parties could present evidence and confront and cross-examine witnesses or present oral argument. Our review of the Regional Director's report, the certification decision of the Board, and its subsequent unfair labor practice decision satisfies us that material and substantial issues of fact were raised and evidenced by Janler's objections with respect to four areas.

Thus Janler objected to union misrepresentations about fringe benefits to which it did not have sufficient time to reply. On the day of the election, employee Wally Dinkel, apparently an in-plant organizer, told employee Gaspero that if the Union won, all employees would receive $120 per week sickness benefits, non-contributory hospitalization insurance and shop insurance for tools. According to Gaspero's signed statement, these promises, except for sickness benefits, had not been made at prior union meetings and were not made until the week of the election. The Regional Director brushed aside these statements as "nothing more than permissible conversation between employees" that "may have been repeated by Union agents at Union meetings which took place at least one month prior to the election." Despite two employee statements submitted by Janler, the Regional Director considered Dinkel as merely "a union supporter" or "another employee" instead of an in-plant union organizer. In the Board's certification decision, it did not discuss the merits of the misrepresentations issue but simply concluded that Janler's prima facie evidence was insufficient for invalidating the election. We cannot agree that assuming the alleged misrepresentations occurred, they did not constitute a prima facie case of improper union conduct, at least when combined with the other instances specified by Janler. See infra; see also Zarn, Inc. , 170 NLRB 1135 (1968); Hollywood Ceramics Company, Inc. , 140 NLRB 221 (1962). In an election this close, such misrepresentations could obviously have affected the ultimate outcome, so that this issue should have been resolved at an adversary hearing.

Janler also contends that it is entitled to a hearing because of the Union's threats of loss of jobs, which substantially interfered with employee freedom of choice in the representation election. Janler submitted Gaspero's statement that, inter alia , Dinkel said if the Union did not win, Janler would get rid of Gaspero's fellow-employee doing the same type of mold repair work, meaning to Gaspero that the mold repair work would be discontinued, with Gaspero also losing his job unless he voted for the Union. The statement also recited that Dinkel and Jorg Basso, another in-plant organizer, told Gaspero on the election day that he would lose his job if he did not vote for the Union. According to the statement of another employee, Len Weisfeld, in February and March 1970, an outside union organizer said in the presence of other employees that if Weisfeld didn't join the Union he would be out of a job. In finding that there was no supporting evidence that the Union threatened employees with loss of jobs, the Regional Director did not even advert to the threats specified in these signed statements*fn5 Although the Board majority stated it was "satisfied that the employees could reasonably be expected to evaluate these remarks as noncoercive and not as threats," we find ourselves in agreement with Chairman Miller that the allegations of threats of loss of jobs were sufficiently serious to call for a hearing and, if made close to the time of election, would furnish grounds for setting aside the election. See Vickers, Inc. , 152 NLRB 793 (1965); G.H. Hess, Inc. , 82 NLRB 463 (1949). We are at a loss to comprehend how the Board majority, without the benefit of the Regional Director's advertence to these alleged threats, much less any factfinding in regard thereto, could possibly feel "satisfied" from their vantage point that the employees would reasonably interpret the remarks as neither threatening nor coercive.

Gaspero's statement also supported Janler's objection based on the Union's assistant business manager's statement to employees that apprentices might lose their company-obtained draft deferments if they did not support the Union. In his report the Regional Director stated, apparently as a result of his investigation, that Gaspero specifically denied that such a threat was made, but, of course, this is directly contrary to his signed statement. The Regional Director then went on to characterize the controversial threat as "typical campaign propaganda." However, such a statement by the Union's assistant business manager might easily have influenced employee votes and should have been explored through a hearing.

The last episode upon which Janler relies was the observation of the election by employee Fred Kovacs, an alleged union adherent, who was keeping a running tally of the balloting. Kovacs signed a statement admitting he kept his own tally as the men voted while he was stationed at his work bench approximately ten feet from the polling area. According to Gaspero's signed statement, when the last employee voted, this observer remarked to other employees, "This is the one - this is the last vote that will decide it." Since Janler's employees were presumably aware that Kovacs was watching the voting area and keeping track of the votes*fn6, they may have been influenced in their voting. This subject also requires the exposure of a hearing to determine whether the laboratory conditions necessary for a Board election were actually maintained. See Piggly-Wiggly No. 011 and No. 228 Eagle Food Centers, Inc. , 168 NLRB 792 (1967); Belk's Dept. Store , 98 NLRB 280 (1952).

Finally, Janler argues that whether or not any of the above and other matters alone was sufficient, certainly their totality requires an evidentiary hearing. We agree with the Fifth Circuit that the combined effect of all of the objectionable acts should be considered. Hometown Foods, Inc. v. National Labor Relations Board , 379 F.2d 241, 244 (5th Cir. 1967). Here Janler's allegations and the supporting statements of employees made a prima facie case for setting aside the election. Because of the closeness of the election, "any minor violation of the Act cannot be dismissed summarily for it could have swayed the crucial vote." National Labor Relations Board v. Overland Hauling, Inc. , 461 F.2d 944, 946-947 (5th Cir. 1972). As in that case, in order that the entire circumstances surrounding the election may come to light, the case is remanded to the Board for a hearing on the matters contained in Janler's objections to the election.

Enforcement denied and case remanded for further proceedings.

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