Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

Nos. 87-7004, 87-7038.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, O'SCANNLAIN, Circuit Judges, and ALBERT LEE STEPHENS, Jr., District Judge.^* 

ORDER

By Memorandum decision of November 5, 1987, this panel upheld the National Labor Relations Board's (the Board) certification of Local 9410 of the Communication Workers of America (the Union) as the bargaining representative for the bargaining unit and enforced the Board's order that Petitioner/cross-respondent bargain with the Union. We reheard the case on June 14, 1988. Upon reconsideration of the case we reaffirm our original opinion and direct that judgment be reentered.

ALARCON, Circuit Judge, dissenting.

After rehearing this matter, I am convinced that I erred in concurring in the original disposition, filed November 5, 1987. Accordingly, I withdraw my concurrence and respectfully dissent.

The majority concludes that threats of violence which union representatives direct at future strikebreakers do not as a matter of law constitute sufficient grounds to warrant the setting aside of a representation election. Like the National Labor Relations Board in Home & Ind. Disposal Service, 1983 NLRB Dec. (CCH) p 15,610, p. 26,647, the Third Circuit in N.L.R.B. v. L & J Equipment Co., Inc., 745 F.2d 224 (3d Cir. 1984), the Eighth Circuit in N.L.R.B. v. Monark Boat Co., 713 F.2d 355 (8th Cir. 1983), and the Fifth Circuit in Hickory Springs Mfg. Co. v. NLRB, 645 F.2d 506 (5th Cir. Unit A 1981), I believe that this view:

does not take into account the tendency of such threats to have a substantial and destructive effect on free and open campaign discussion, as well as freedom of choice at the polling place itself. A campaign environment in which a union threatens that violent repercussions will ensue, should employees choose to oppose it in the future, is one in which there is a substantial likelihood that employees will be inhibited from expressing their actual views, and is surely one which jeopardizes the integrity of the election process.

Home & Ind. Disposal Service, 1983 NLRB Dec. (CCH) Par. 15,610, at p. 26649; see Hickory Springs, 645 F.2d at 509-10 (threats by union representatives); see also L & J Equipment, 745 F.2d at 238-39 (threats by union supporters); Monark Boat, 713 F.2d at 358-59 (same). I would adopt the well-reasoned positions of the NLRB in Home and Ind. Disposal Service, the Third Circuit in L & J Equipment, the Eighth Circuit in Monark Boat, and the Fifth Circuit in Hickory Springs, and hold that threats against future strikebreakers may constitute sufficient grounds to warrant the overturning of a representation election.

With this principle in mind, I turn to the question whether Taylor Made was entitled to an evidentiary hearing on its objections to the representation election. To obtain an evidentiary hearing, an objecting party must "make out a prima facie showing of substantial and material factual issues that would, if true, warrant setting aside the election." Bell Foundry v. N.L.R.B., 827 F.2d 1340, 1344 (9th Cir. 1987). It is an abuse of discretion for the Board to deny an evidentiary hearing when the objecting party has established a prima facie case. Id. ("we must construe the 'well pleaded factual assertions of the objection most favorably to the excepting party,' and will remand to the Board to order a hearing if those factual assertions create a material issue of fact") (quoting NLRB v. Belcor, Inc., 652 F.2d 856, 859 (9th Cir. 1982)); accord N.L.R.B. v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1318 (9th Cir. 1982).

To establish a prima facie case that a representation election was tainted by threats made to future strikebreakers, the employer normally must plead facts which, if true, would be sufficient to support a finding both that threats were made and that an "employee was actually coerced or intimidated" by the threats. See Belcor, Inc., 652 F.2d at 861; Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1019 (9th Cir. 1981). However, where the threats are "inherently intimidating," see Spring City, 647 F.2d at 1019, their coercive effect is presumed and the employer need only show that the threats were made to be entitled to a hearing, see id.

In the instant case, Taylor Made's objections make out a prima facie case that the representation election was tainted by threats of future violence. Read in a light most favorable to Taylor, Bell Foundry, 827 F.2d at 1344, the Burgess affidavit provides that union representative Bass threatened to attack future strikebreakers with shotguns. While the affidavit does not disclose whether Burgess was intimidated by this threat, we must presume that he was so because threats of gunplay are inherently intimidating. See Spring City, 647 F.2d at 1019.

Since Taylor made out a prima facie case that the representation election was tainted by the alleged threats, I would hold that the Board abused its discretion in refusing Taylor's request for an evidentiary hearing.