Beaird-Poulan Division, 1365 (1980)

BEAIRD-POULAN DIVISION Beaird-Poulan Division, Emerson Electric Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 15-CA-6315

February 25, 1980 SUPPLEMENTAL DECISION AND ORDER

By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO

On May 25, 1977, the National Labor Relations Board issued its initial Decision and Order' in this proceeding wherein it found that the Union was properly certified on November 23, 1976, following a valid Board-conducted election, that Respondent's refusal to bargain violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and, accordingly, ordered Respondent to bargain with the Union.

On March 2, 1978 the United States Court of Appeals for the Eighth Circuit denied enforcement2 of the Board's Order and remanded the proceeding to the Board for the purpose of conducting a hearing on Respondent's allegations of union misconduct in the election. The Board accepted the remand and, in accordance therewith, a hearing was held before Administrative Law Judge Marvin Roth.

On August 28, 1979, Administrative Law Judge Marvin Roth issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief, the General Counsel and the Charging Party filed briefs in support of the Administrative Law Judge's Decision, and the Charging Party also filed a reply brief to Respondent's exceptions and brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the ' 229 NLRB 988.

517 F.2d 432

Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence consitnces us that the resolutions are incorrect. Standard Dry Wall Product. Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). we have carefully examined the record and rind no basis for reversing his findings.

Member Penello agrees with his colleagues that Objection 3 involving misrepesentations should be overruled. but does so for the reasons set forth in Shopping Karl Food Market. Inc.. 228 NLRB 1311 (1977). the principles of which he still adheres to. See his dissenting opinion in General Knit of California. Inc.. 239 NLRB 619 (1978). Member Penello also agrees with his colleagues that Petitioner did not threaten employee Robert De Young with violent reprisals if he crossed a picket line and returned to work. Therefore, his dissenting opinion in Hickory Springs Manufacturing Company. 239

NLRB 641 (1978), has no application in this proceeding.

247 NLRB No. 180

National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record as a whole and the attached Supplemental Decision in light of the exceptions, briefs, and the decision of the Court of Appeals for the Eighth Circuit, and has decided to affirm the rulings, findings,' conclusions, and recommendations of the Administrative Law Judge. Accordingly, we shall affirm our initial Decision and Order herein in its entirety.

ORDER

Based on the foregoing and the entire record in this proceeding, the National Labor Relations Board hereby affirms its Decision and Order issued in this proceeding on May 25, 1977, reported at 229 NLRB 988.

SUPPLEMENTAL DECISION

STATEMENT OF 'THE CASE MARVIN ROTH, Administrative Law Judge: On May 25, 1977, the Board issued a Decision and Order (229 NLRB 988), finding that Beaird-Poulan Division, Emerson Electric Company (herein the Company or Respondnet) violated Section 8(a)(5) and (I) of the National Labor Relations Act, as amended, by refusing to recognize and bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein the Union) as the certified representative of the production and maintenance employees at the Company's Shreveport.

Louisiana, plant locations on Flourney-Lucas and Greenwood Roads. The certification was issued by the Board on November 238 1976, and was predicated upon an election which was conducted on April 30, 1976, pursuant to a Stipulation for Certification Upon Consent Election approved by the Board's Regional Director on April 1, 1976.

the Union having filed its petition on March 2, 1976. The Union won the election by a vote of 402 to 383. On March 2, 1978, the United States Court of Appeals for the Eighth Circuit entered its decision (571 F.2d 432) denying enforcement of the Board's Order and remanding the case to the Board for a hearing on the Company's allegations of union misconduct in the election. Thereafter, on May 10, 1978, the Board ordered that a hearing be held before an administrative law judge 'for the purpose of taking evidence in accordance with the Court's remand,' and that such administrative law judge thereafter 'prepare and serve on the parties a Decision containing findings of fact based upon the evidence received pursuant to the provisions of this Order, Conclusions of Law, and recommendations.' Pursuant to notice, a hearing was held before me in Shreveport, Louisiana, on August 8-11, 1978. and January 15-19, 1979. All parties were afforded full opportunity to 1 65

DECISIONS OF NATIONAL LABOR RELATIONS BOARD participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs.' Upon the entire record in this supplemental hearing, and from my observation of the witnesses, and having considered the briefs submitted by the parties, I make the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. The Scope of the Court's Remand The Company filed the following objections to the conduct of the election:

1. The Union conducted a campaign of fear and intimidation, including predictions of violence and economic detriment to employees opposed to the Union which permeated the entire atmosphere in such a manner as to destroy the laboratory conditions required by the Board in its election proceedings.

2. The Union made substantial misrepresentations with respect to the compensation, stock options and benefits of officials and supervisors of the Employer.

3. The Union made substantial misrepresentations with respect to its alleged contractual relationship with Huck Manufacturing Co. of Waco, Texas. The Union misrepresented wage rates being paid employees at Huck Manufacturing Co.

4. Union supporters were permitted to stay in the polling area after casting their ballots and campaigning was conducted during the election in violation of the Board's 'Milchem Rule.' 5. By the above and other acts and conduct, the Union precluded the employees from expressing their free choice in a non-coercive atmosphere.

   I reject the Company's argument in its brief that my sole function in deciding this case is to resolve the credibility questions posed by the evidence concerning the Company's objections. The Board's order directing a hearing in accordance with the Court's remand, specifically directs that the Administrative Law Judge hearing this proceeding shall prepare a decision containing findings of fact, conclusions of law, and recommendations. The Company's argument is based on the premise that the court of appeals resolved all of the legal issues in this case when it held that a hearing was warranted. That premise is erroneous. The court could not and did not resolve these questions, because the factual record was incomplete. Rather, the court simply held, in essence, that the Company came forward with evidence which if fully credited, unexplained or uncontradicted by credible evidence, and interpreted in a manner most favorable to the Company's position, would warrant setting aside the election. Insofar as the court cited decisional authority in support of its conclusion, I have considered and where appropriate, discussed those authorities insofar as they are 'The General Counsel, the Company. and the Union each filed a brief, and the Union filed a reply brief. No party having objected to the filing of a reply brief, that Brief has been received and considered.

   ' By a ruling and order dated July 3, 1979, 1 directed that the stenographic transcript of proceedings be corrected in certain respects.

   Blackman-Uhler Chenical Division-Synalloy Corporaion, 239 NLRB 637 (1978), cited in support of the Company's argument, is not in point.

   Unlike the present case, that case on remand from the Fourth Circuit Court of applicable or inapplicable to the facts as determined in this Supplemental Decision.' As for the nature of this proceeding, it is a supplementary unfair labor practice proceeding in which the Respondent has the burden of going forward with the evidence and the ultimate burden of proof. Southern PaperBox Company, 207

   NLRB 56, 58, fn.7 (1973), enfd. 506 F.2d 581 (8th Cir., 1974). The results of a Board-conducted election and the consequent Board certification of those results are presumed to be valid unless the objecting party can prove that there was improper conduct which tended to interfere with employee free choice in the election. As the present hearing came on in the form of an unfair labor practice proceeding, i.e., a continuation of a proceeding in which the General Counsel is alleging that the Company is violating Section 8(a)(5) and (I) of the Act by refusing to recognize and bargain with the Union as the certified representative of the Company's employees in an appropriate unit, the General Counsel could in the exercise of its discretion, under Section 3(d) of the Act participate in this proceeding as a party litigant rather than as a neutral third party. Section 3(d) expressly provides that the General Counsel has final authority, on behalf of the Board, in respect of the prosecution of complaints before the Board. The General Counsel chose to exercise this...