Unpublished Disposition, 908 F.2d 976 (9th Cir. 1976)

Nos. 89-70149, 89-70201.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and ALBERT LEE STEPHENS,^**  Jr., District Judge.

MEMORANDUM^*** 

Appellant Fairway Supermarket of Visalia (Fairway) challenges an order of the National Labor Relations Board (the Board) finding that Fairway committed unfair labor practices by refusing to bargain with the United Food and Commercial Workers, Local 1288 (the Union). Fairway claims that improper Union activities tainted the representation election, and that the Board should have required an evidentiary hearing on its objections. The Board has filed a cross-application for enforcement of its order requiring Fairway to bargain with the Union. We deny Fairway's petition for review and order enforcement in full of the Board's order.

ANALYSIS

The Board's findings of fact must be upheld if they are supported by "substantial evidence" and its legal conclusions affirmed unless they are "arbitrary and capricious." NLRB v. Yellow Transp. Co., 709 F.2d 1342, 1343 (9th Cir. 1983).

[I]n order to obtain a hearing on an election objection, "the objecting party must supply prima facie evidence, presenting 'substantial and material factual issues' which would warrant setting aside the election." NLRB v. L.D. McFarland Co., 572 F.2d 256, 261 (9th Cir. 1978), quoting Alson Mfg. Aero. Div. of Alson Indus., Inc. v. NLRB, 523 F.2d 470, 472 (9th Cir. 1975). Thus, if the objector fails to proffer specific evidence which would constitute a prima facie showing of its contentions, or if those contentions, even if true, would not warrant setting aside the election, then the Board need not grant an administrative hearing.

Natter Mfg. Corp. v. NLRB, 580 F.2d 948, 951 (9th Cir. 1978) (additional citations omitted), cert. denied, 439 U.S. 1128 (1979). An employer seeking to set aside an election bears a particularly heavy burden where there has been an overwhelming vote in favor of the union. NLRB v. Belcor, Inc., 652 F.2d 856, 860 (9th Cir. 1981).

Fairway cites Rick Galvin's offer to pay Ching Wong $5.00 for wearing a union button and voting for the union as an improper monetary inducement. Fairway does not assert that Galvin was acting as an agent of the Union.

"Incidents which are not attributable to a union are entitled to less weight than union-attributable statements in determining whether a free election was possible...." NLRB v. Sonoma Vineyards, Inc., 727 F.2d 860, 865 (9th Cir.), cert. denied, 469 U.S. 836 (1984); see also NLRB v. Aaron Bros. Corp., 563 F.2d 409, 412 (additional citations omitted) (9th Cir. 1977). "This policy credits employees with the ability to give true weight to the possibly impulsive allegations of fellow employees induced by the heat of a campaign." NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, 1131 n. 5 (9th Cir. 1973); see also Aaron Bros., 563 F.2d at 412. " [T]o warrant overturning an election, employee conduct must be 'coercive and disruptive conduct or other action [which] is so aggravated that a free expression of choice of representation is impossible.' " Aaron Bros., 563 F.2d at 412 (emphasis in original) (quoting NLRB v. Monroe Auto Equip., 470 F.2d 1329, 1332 (5th Cir. 1972)) cert. denied, 412 U.S. 928 (1973); see also NLRB v. Miramar of Cal., Inc., 601 F.2d 422, 424 (9th Cir. 1979),; NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1319 (9th Cir. 1982).

Fairway suggests that the "free expression of choice" test should be applied only where incidents of threats or violence have been alleged, and cites several cases presenting a more lenient standard. The cases it cites, however, involve conduct that was directly attributable to the union. See NLRB v. Gulf States Canners, Inc., 585 F.2d 757 (5th Cir. 1978) (union provided gasoline to employees), cert. denied, 452 U.S. 906 (1981); Plastic Masters, Inc. v. NLRB, 512 F.2d 449 (6th Cir. 1975) (union made payments to influential employee); NLRB v. Commercial Letter, Inc., 455 F.2d 109 (8th Cir. 1972) (union reimbursed employees for attending hearings). In Revco D.S., Inc. (DC) v. NLRB, 830 F.2d 70, 72-73 (6th Cir. 1987), another case cited by Fairway, the court found that the employee whose conduct was at issue "had apparent authority to act and speak for the union" and that the affected employee acted reasonably in viewing the asserted troublemaker as a union agent. Fairway does not present any cases in which the test it espouses was applied to "third-party" conduct. We reject Fairway's suggestion that we apply a more lenient standard to Galvin's comments.

Fairway's assertion that " [t]here is no evidence that the misconduct in the instant case was against Union orders," fails given the absence of any claim that Galvin's conduct was linked to the Union. Moreover, Fairway's reference to NLRB v. West Coast Liquidators, Inc., 725 F.2d 532 (9th Cir. 1984) is inapposite, as the employer in that case presented evidence that the wrongdoers were affiliated with the Union.

Fairway cites NLRB v. Connecticut Foundry Co., 688 F.2d 871 (2d Cir. 1982) to support its contention that the Board failed to take "into account the Employer's lack of access to information and evidence within the exclusive control of the Union, or the absence of any discovery." The employer in Connecticut Foundry contended that the Board erred by failing to grant a hearing to determine the extent and nature of certain payments to striking workers, and by ignoring evidence that the payments to some strikers may have exceeded their normal wages. The court expressed its "sensitivity to allegations of improper pre-election cash payments by the Union to employees," and stressed "the need for a hearing in such cases in order to afford the Company the right to discover evidence exclusively within the control of the Union." 688 F.2d at 879. The court went on to observe:

This is not to say that a hearing is always warranted when allegations of improper payments are made. The Company must still produce sufficient evidence, in the form of affidavits or otherwise, to satisfy its burden of establishing a prima facie case. Still, we emphasize that in determining whether the Company has met its burden, the NLRB must take into account the Company's access to information and evidence in the absence of discovery.

Id. The court concluded that the employer produced sufficient evidence of possible improprieties in the Union's payments to warrant a hearing. Id.

It is difficult to ascertain what evidence--if any--"within the exclusive control of the Union" could bolster Fairway's claim here. Fairway does not allege that Galvin was affiliated in any way with the Union. Moreover, the Union has no monopoly on evidence establishing the effect of Galvin's statements.

Although Galvin's statements were reprehensible, they did not create an atmosphere in which free expression of choice was impossible. Fairway has not satisfied its burden of establishing a prima facie case on this issue, and has not offered any suggestion of what type of evidence might aid in proving its case. We reject Fairway's monetary inducement claim.

Fairway contends that John McManus's statements at the organizing meeting constituted an impermissible promise of pension benefits, an impermissible promise of accelerated pension benefits, and a misrepresentation of pension benefits. The Regional Director's discussion of this issue is as follows:

[T]he "Union's own pension plan" is the "Northern California Retail Clerks Unions and Food Employers Joint Pension Trust Fund". It is jointly administered by various representatives of participating Employers and Unions, and is subject to the Employee Retirement Income Security Act of 1974. Effective January 1, 1976, the pension plan was revised to comply with the 1974 Act. Article 5, Credited Service and Vesting Credits of the pension plan was revised and in part provides:

"The Trustees may provide conditions for the granting of Credited Past Service to employees of a retail food and liquor Employer who are not covered by a Collective Bargaining Agreement providing for pension contributions to start on April 1, 1957, but who subsequently became covered by an agreement providing for Employer contributions to this fund."

By virtue of this revision, it is clear that credit for prior service in the pension plan was an existing benefit prior to the election campaign. In addition, the pension fund is not in the exclusive control of the [Union] but rather it is jointly administered with other "trustees" from other Unions and Employers. According to the declarant, McManus stated that all employees would be given credit for the number of years they worked for the Employer. There is no evidence that credit was promised or contingent upon the employee's support of the [Union]. Just as an employer can call attention to benefits that its employees in the proposed unit currently enjoy, so, too, can a union point out benefits its members currently enjoy.

Excerpts of Record 12-7, 8 (first emphasis supplied).

As the Board stated in Dart Container of California, 277 N.L.R.B. 1369, 1370 (1985) it is difficult to "believe that a union interferes with an election when it promises to extend an existing incident of union membership to new members." Thus, if McManus was merely explaining the scope of an existing benefit which the employees would receive if the Union won the vote, his statements were not improper.

The crediting of past service by a multiemployer pension plan is not unusual. This court has observed:

The crediting of past service is common in multiemployer plans. This feature allows employees who are near retirement age when their employer first contributes to the plan to be eligible for benefits calculated on the basis of all their years of employment, after as little as one year's contributions have been made.

Elser v. I.A.M. Nat'l Pension Fund, 684 F.2d 648, 650 n. 1 (9th Cir. 1982), cert. denied, 464 U.S. 813 (1983). The District of Columbia Circuit has also discussed the nature of multiemployer pension funds:

Typically, when a new employer joins a fund, its employees receive precontributory service credits for the years they spent with the employer prior to joining the fund. For example, a particular employee who had worked for the employer for 20 years before the employer joined the fund would immediately receive 20 years of service credit. His pension would be based on 20 years of service even though his employer, at the time it joined, had contributed nothing to pay for that pension.

Stewart v. National Shopmen Pension Fund, 730 F.2d 1552, 1554 n. 4 (D.C. Cir.), cert. denied, 469 U.S. 834 (1984).

The Board claims that the Union's plan "allowed employees to receive credit for prior service as an existing benefit prior to the election." The Regional Director agreed. Fairway does not contest this claim outright, but says that questions remain as to:

1) what, if any, are all the provisions in the plan document and trust agreement applying to past service; 2) how have any such provisions been applied; 3) has the plan document been properly amended to allow for past service credit, and if so, what are the conditions, limitations, and procedures; 4) how do those conditions or provisions affect the dollar amount of any potential pension benefit; 5) what provisions, if any, exist in the plan document for the forfeiture of prior service credit and pension benefits such as if an employer leaves the plan.

As Fairway notes, the Regional Director's report does not indicate what evidence persuaded him that credits for past service were granted under the Union pension plan. Fairway correctly states that the pension plan provision contains discretionary language ("The Trustees may provide...."). Although Fairway does raise questions about the operation of the plan, it has not presented any evidence, and in fact makes no claim, that McManus's statements were untrue. Accordingly, Fairway has failed to "supply prima facie evidence, presenting substantial and material factual issues which would warrant setting aside the election," and is thus not entitled to a hearing.

In Midland National Life Insurance Co., 263 N.L.R.B. 127 (1982), the Board, after a lengthy discussion, announced:

[W]e will no longer probe into the truth or falsity of the parties' campaign statements, and ... we will not set elections aside on the basis of misleading campaign statements. We will, however, intervene in cases where a party has used forged documents which render the voters unable to recognize propaganda for what it is. Thus we will set an election aside not because of the substance of the representation, but because of the deceptive manner in which it was made, a manner which renders employees unable to evaluate the forgery for what it is.... [W]e will continue to protect against other campaign conduct, such as threats, promises, or the like, which interferes with employee free choice.

263 N.L.R.B. at 133 (footnotes omitted). This circuit has upheld the Board's application of the Midland rule. See, e.g., NLRB v. Cal-Western Transp., 870 F.2d 1481, 1489 (9th Cir. 1989); NLRB v. Best Prods. Co., Inc., 765 F.2d 903, 910-13 (9th Cir. 1985); Yellow Transp. Co., 709 F.2d at 1343. The Midland rule was adopted, in part, to avoid "extensive analysis of campaign propaganda, ... increasing litigation, and a resulting decrease in the finality of election results." 263 N.L.R.B. at 131. The type of examination of the pension plan Fairway seeks is precisely the type of analysis the Board hoped to avoid by adopting the Midland rule. We reject Fairway's misrepresentation claims.

CONCLUSION

Fairway's petition for review is DENIED, and the Board's Order is ordered ENFORCED IN FULL.