National Labor Relations Board v. Valley Bakery, Inc.

ORDER

In view of the petition for rehearing and/or suggestion for rehearing en banc filed by the National Labor Relations Board herein, the court makes the following amendment to its opinion filed on February 24, 1993:

Delete the portion of the second paragraph on page 1375 from “Moreover, in NLRB v. Smith Industries.... ” to and including the first sentence on page 1376 ending with “influenced any votes.”.

Judge Poole has revised his dissenting opinion filed herein to conform to the above mentioned deletion from the majority opinion. Judge Poole’s revised dissenting opinion is being sent herewith to the clerk for filing.

The panel majority has voted to deny appellant’s petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en bane and the amendments to the majority and dissenting opinion, and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

With the court’s opinion, which was filed on February 24, 1993, and the dissenting opinion amended as above mentioned, the petition for rehearing is DENIED and the suggestion for rehearing en banc is…

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…

1 F.3d 769 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. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 9, 1993. 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. ORDER 1 In view of the petition for rehearing and/or suggestion for rehearing en banc filed by the National Labor Relations Board herein, the court makes the following amendment to its opinion filed on February 24, 1993: 2 Delete the portion of the second paragraph on page 1375 from "Moreover, in NLRB v. Smith Industries...." to and including the first sentence on page 1376 ending with "influenced any votes.". 3 Judge Poole has revised his dissenting opinion filed herein to conform to the above mentioned deletion from the majority opinion. Judge Poole's revised dissenting opinion is being sent…