PETITION FOR REVIEW FROM THE NATIONAL LABOR RELATIONS BOARD NLRB No. 22-CA-9695
Before Rosenn and Higginbotham, Circuit Judges, and McCUNE, District Judge.*fn*
This petition for review and cross-application for enforcement of an order of the National Labor Relations Board presents a number of issues concerning the propriety of union conduct preceding a representation election. On April 5, 1979, the International Union of Electrical, Radio and Machine Workers (the IUE or Union) filed a petition with the National Labor Relations Board (the Board) for a representation election at the Edison, New Jersey, plant of Vitek Electronics, Inc. The election, involving a bargaining unit of 120 employees previously not represented by a union, was held June 7, 1979. The Union won, 70 to 45. Vitek filed eight objections with the Board's Regional Director (the "RD"). After an administrative investigation that included ex parte interviews with potential Vitek witnesses, but no hearing, the RD recommended that Vitek's objections be overruled. Vitek filed exceptions with the Board, but the Board, also without a hearing, adopted the RD's findings and recommendations.
Vitek, as a method of challenging the election, subsequently refused to bargain with the Union. On February 4, 1980, the General Counsel issued a complaint alleging violation of section 8(a)(1) & (5) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1) & (5) (1976). The Board entered summary judgment in favor of the General Counsel because the only issues raised by Vitek were essentially already litigated and lost by Vitek in the underlying representation case. Vitek filed this petition for review of the Board's subsequent order; the Board has cross-applied for enforcement. 29 U.S.C. § 160(e) & (f) (1976).
Our review is essentially a review of the Regional Director's post-election findings and conclusions as adopted by the Board. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941); Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 293 (3d Cir. 1981). In his report the RD dealt with Vitek's eight objections in four groups. On its petition to this court Vitek attacks the findings and conclusions with respect to two of these groups of objections one alleging union intimidation and another alleging union misrepresentation in campaign literature. We conclude that Vitek's objections to the Union's alleged misrepresentations, as presented to the RD, disclosed "substantial and material factual issues" that required the RD or the Board to conduct an evidentiary hearing prior to certification of the election results. We grant the petition for review and deny enforcement.
According to Vitek's initial submission to the RD, "(o)n the day of the election itself, and possibly on ... the day prior to the election, the Union distributed to employees" two "handbills" (among others) whose contents were allegedly false. One was titled "IUE-Vitek News" (the "News" handbill) dated June 4, 1979. Its front page declared that although
latest figures issued by the government indicate that the cost of living is going up at a rate of 14% ... the Vitek Company provides no cost of living protection for its workers, another reason why we need a union at Vitek.
In other plants in this area, where the people have previously voted in the IUE, the Union has negotiated cost of living protective clauses.
Under their union contract
* AT EDISON PRODUCTS (WHITE-WESTINGHOUSE), EDISON, N.J.
* AT GULTON INDUSTRIES, METUCHEN, N.J.
* AT DELCO BATTERY, NEW BRUNSWICK, N.J.
the wages of IUE members are increased regularly, throughout the year, to keep pace with the cost of living increase announced by the U.S. Department of Labor.
This is the kind of protection we need at Vitek where wages are low enough without being further "cut" by runaway prices.
Vitek asserted that the IUE contracts at Edison Products, Gulton Industries, and Delco Battery did "not guarantee to employees absolute and unlimited protection against cost of living increases, as stated in the Union leaflet. Rather those cost of living formulas are "capped' and keyed to a specific formula."
Another handbill was entitled "A Story By and For Vitek Workers" (the "Story" handbill). "Chapter One" of this story told the following unhappy tale:
In the "good ole" days, before the union came on the scene, the company had every opportunity to make Vitek a decent place to work.
But they goofed. Rates of pay were the lowest in the area. Seniority meant nothing when it came to promotions or overtime.
Few safety precautions were taken to protect the people from carbon monoxide fumes, and when they got sick because of the ...