Oshman's Sporting Goods, Inc. v. National Labor Relations Board

Oshman’s Sporting Goods, Inc. (Oshman’s) petitions for review of an order of the National Labor Relations Board requiring that it bargain with Teamsters Union, Local 860. The Board cross-applies for enforcement of its order. We deny the petition for review and grant the application for enforcement.

I. FACTS

Oshman’s, a large sporting-goods retailer, employs approximately 25 workers at its warehouse in Millbrae, California. These employees were not represented by any union. In early 1976, the Board granted the Teamsters’ petition for an election in a unit consisting of all warehouse employees, including truck drivers and clerical workers. An election was held on March 3, 1976, which the Teamsters lost by a vote of 14 to 10.

The Teamsters filed numerous objections to the March 3 election. After investigation, the Board’s Regional Director ordered a hearing on most of these objections. The hearing was never held, however, because Oshman’s and the Teamsters stipulated, with the approval of the Regional Director, that the results of the election be set aside and a new election be scheduled. The second election was held on May 13, 1976. This time the Teamsters won by a vote of 14 to…

(concurring):

Contrary to the statement in the majority opinion, I am not tempted to hold “that we will no longer sustain orders setting aside elections, or set aside orders sustaining them, in cases of threats as well as in cases of claimed misrepresentations in election campaigns.”

Despite the fact that “it is the Board, not the courts, that is presumed to be expert in this field,” this court has recognized that threats of physical harm from union agents can taint if not invalidate the results of a representation election. See, e. g., Alson Mfg. Aerospace Div. of Alson Indus., Inc. v. NLRB, 523 F.2d 470 (9th Cir. 1975); Sonoco Products Co. v. NLRB, 443 F.2d 1334 (9th Cir. 1971).

To this extent, I disagree with the conclusions of the study, cited in the majority opinion, that employer and union conduct does not have a potentially coercive impact on election results. Threats such as those that occurred here may indeed intimidate employees to vote for the union.

I concur in the result because the employer failed to meet its burden of proof. As we have held recently, “to obtain a hearing on the charge of alleged Union threats and violence, the Employers had to show that the…

586 F.2d 699 100 L.R.R.M. (BNA) 2286 , 85 Lab.Cas. P 11,005 OSHMAN'S SPORTING GOODS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 77-2494. United States Court of Appeals, Ninth Circuit. Nov. 20, 1978. Robert M. Cassel (argued), Pettit, Evers & Martin, San Francisco, Cal., for petitioner. Elliott Moore, Christine Peterson (argued), Washington, D.C., for respondent. Petition to Review a Decision of the National Labor Relations Board. Before TUTTLE, * DUNIWAY and WRIGHT, Circuit Judges. DUNIWAY, Circuit Judge: 1 Oshman's Sporting Goods, Inc. (Oshman's) petitions for review of an order of the National Labor Relations Board requiring that it bargain with Teamsters Union, Local 860. The Board cross-applies for enforcement of its order. We deny the petition for review and grant the application for enforcement. I. FACTS 2 Oshman's, a large sporting-goods retailer, employs approximately 25 workers at its warehouse in Millbrae, California. These employees were not represented by any union. In early 1976, the Board granted the Teamsters' petition for an election in a unit consisting of all warehouse employees, including truck drivers and clerical workers. An…