On Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board.
Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Christensen, Senior District Judge.*fn*
HASTINGS, Senior Circuit Judge.
We have for consideration the petition of Regency Electronics, Inc. (the Company), to review and set aside an order of the National Labor Relations Board (the Board) issued against it on November 30, 1972, pursuant to § 10(c) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151, et seq. (the Act). This order is reported at 200 NLRB No. 88. The Board has cross-petitioned for enforcement of its order. We have jurisdiction since the underlying unfair labor practice is alleged to have occurred at the Company's plant in Indianapolis, Indiana. The Company is engaged in the manufacture, sale and distribution of electronic equipment and related products.
The Board found that the Company had violated §§ 8(a) (5) and (1) of the Act by refusing to bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union), which had been certified by the Board as the exclusive bargaining representative of the employees of the Company in the representation proceedings hereinafter set out.
On October 20, 1971, the Union filed a petition for a representation election, together with a stipulation for certification upon consent election executed by the Union and the Company. Pursuant to the stipulation, the election was held on December 17, 1971, in a unit of certain employees of the Company. A total of 221 valid votes were counted. The Company received a majority, 117 to 104. In addition, there were 12 challenged votes cast which were not counted. Since the challenged ballots were insufficient in number to affect the outcome of the election, the challenges were not resolved.
On December 22, 1971, the Union filed timely objections to the election alleging in substance that on December 16, 1971, the day prior to the election, the Company had (1) coerced and intimidated an employee; and (2) distributed to all employees an exact duplicate of the Board's sample ballot, and marked an "X" and a red heart in the "NO" square, thereby giving the impression that the Board was endorsing the Company's position. The Regional Director of the Board timely and properly investigated the Union's two objections and on January 28, 1972, issued his report and recommendations to the Board. He found the allegation that the Company had coerced and intimidated an employee to be without merit. However, he found merit in the Union's objections to the Company's distribution of the marked sample ballot and recommended that the Board direct a new election.
Overruling timely filed objections by the Company to the Regional Director's report on objections, on February 25, 1972, the Board issued a decision adopting the Regional Director's findings and recommendations, setting aside the results of the election and ordering a second election. As a part of this order the Board established a new voter eligibility list including unit employees "employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election." Accordingly, employees hired subsequent to the eligibility date of the first election were to be permitted to vote in the second election.
Subsequently, the second election was held March 24, 1972, which resulted in 245 valid ballots being cast. The Union received a majority, 133 to 112, with no challenged ballots. On March 31, 1972, the Company filed timely objections to the results of the second election alleging, inter alia, that the first election was improperly set aside and, further, that the Board improperly selected a new eligibility date for the second election.*fn1 Following proper administrative procedures, on August 1, 1972, the Board issued a supplemental decision and certification of representation finding no merit in the Company's objections and certifying the Union as the exclusive bargaining representative of the Company's employees in the bargaining unit found appropriate.
In order to seek judicial review, the Company refused to comply with the Union's request to bargain. An unfair labor practice complaint was subsequently filed. The matter was finally transferred to the Board itself for consideration of a show cause order on the General Counsel's motion for summary judgment and the Company's response thereto.
These proceedings culminated on November 30, 1972, in the Board's ordering the Company to cease and desist from refusing to bargain with the Union. It is this order which is the final order under present consideration by our court.
The core of the first issue is whether the Board was warranted in setting aside the first election on the sole ground that the Company, on the day before the first election, distributed to all employees an exact duplicate of the Board's sample ballot altered in such a manner as to tend to mislead the employees to believe that it implied an endorsement of the Company by the Board. In short, the use of this type of information under the surrounding circumstances might have had an undesirable impact on the employees' freedom of choice.
The facts are not in dispute. There was the usual propaganda by both parties preceding the first election on December 17, 1971. The Union distributed leaflets referring to "Love Letters" from the Company as an attempt to "Brain-Wash" the employees to vote against the Union. The Company responded in a light vein with a leaflet entitled "The Regency Love Story," using thereon a number of red hearts. The Union reacted with further reference to ...