National Labor Relations Board v. Valley Bakery, Inc.

986 F.2d 339 142 L.R.R.M. (BNA) 2615 , 143 L.R.R.M. (BNA) 3078 , 124 Lab.Cas. P 10,566 , 125 Lab.Cas. P 10,792 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY BAKERY, INC., Respondent. No. 91-70352. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 1992. Decided Feb. 24, 1993. National Labor Relations Board (NLRB) petitioned for enforcement of order that employer bargain with union. The Court of Appeals, Choy, Circuit Judge, held that evidentiary hearing should have been conducted on employer's claims of election misconduct by union, based on circumstantial evidence of implied threats that employees would be fired if they had signed union authorization cards and union lost election. Petition denied; case remanded. Poole, Circuit Judge, filed dissenting opinion. John D. Burgoyne and Collis Suzanne Stocking, N.L.R.B., Washington, DC, for petitioner. Harry Finkle, Finkle, Davenport & Bartsamian, Fresno, CA, for respondent. On Application for Enforcement of an Order of the National Labor Relations Board. Before: WALLACE, Chief Judge, and CHOY and POOLE, Circuit Judges. CHOY, Circuit Judge: 1 The National Labor Relations Board ("NLRB" or "Board")…

The National Labor Relations Board (“NLRB” or “Board”) petitions for enforcement of its order that Valley Bakery, Inc. (“Valley” or “Company”) bargain with the Bakery, Confectionary & Tobacco Workers International Union, Local No. 85, AFL-CIO (“Union”). Because the Regional Director should have conducted an evidentiary hearing on the Company’s claims of election misconduct by the Union, we decline to enforce the Board’s order and remand for an evidentiary hearing.

I. PROCEDURAL & FACTUAL BACKGROUND

On April 19, 1990 the Union filed a petition seeking a representation election at *341 the Company. On June 6, 1990 the NLRB held an election at which employees cast twelve votes for and nine votes against Union representation.

The Company timely objected to the election alleging, inter alia, that the Union or its agents coerced employees to vote in its favor by telling employees that they would be fired if the Union lost the election. In support of these objections Valley submitted the declaration of Nancy Gallagher, its Personnel Director. According to Gallagher, after the election she asked a Valley employee, who characterized herself as a strong Union supporter, why the Company…

dissenting:

Because I would hold that the Board did not abuse its discretion by failing to hold an evidentiary hearing, I respectfully dissent.

In support of its claim that the Union coerced Valley employees to vote for it, Valley submitted only a declaration by a supervisor that an employee told her that “employees were told” that anyone who signed an authorization card would be fired if the Union lost the election. The employee refused to identify who made the statements.

In upholding the Union's certification, and in denying Valley an evidentiary hearing, the Regional Director found that threats of retaliatory discharge had been made and that the supervisor’s declaration did not establish that the Union made the threats. The Regional Director further found that even if the Union made the threats, employees would evaluate the threat of firing as illogical because (1) there was no evidence that Valley would fire employees and (2) employees signed the authorization cards in confidence and there was no evidence that Valley knew who signed the cards.

The Regional Director did not abuse his discretion by failing to hold an evidentiary hearing on the ground that the employees *345…