Before KALODNER, HASTIE and SMITH, Circuit Judges.
The National Labor Relations Board found that the respondent, Clearfield Cheese Company, Inc. ("Company") violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. 158(a)(1) and (5), by refusing to bargain collectively with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO ("Union"), following certification of the Union as collective bargaining representative for the Company's employees. 139 N.L.R.B. No. 2. The Board instituted this proceeding to enforce its order directing the Company to cease and desist from engaging in the unfair labor practices found and to bargain with the Union upon request.
The Company concedes that it has refused to meet and bargain with the Union. Its refusal is based upon the assertion that the Union is not validly certified. This presents the basic issue in this proceeding.
The material facts are as follows.
On August 23, 1961, the Union filed a petition with the Regional Director of the National Labor Relations Board requesting that a representation election be conducted among the Company's production and maintenance employees. Following a hearing, the Regional Director, on September 28, 1961, issued a Decision and Direction of Election in which he directed that an election by secret ballot be conducted among the Company's employees.The election was held on October 18, 1961, resulting in 71 votes for the Union, 71 votes against the Union and 10 challenged ballots.
On October 20, 1961, the Union filed objections to the conduct of the election and to conduct affecting the result of the election. The Union alleged as grounds for setting aside the election and ordering a new one, that the Company submitted an inaccurate eligibility list of voters, that the Company's anti-union propaganda was misleading and exceeded the bounds of fair comment, and finally, that the questioning of employees by supervisors and other activity of the Company unduly interfered with the employees' freedom of choice. The Regional Director conducted an investigation of the objections. All parties were afforded an opportunity to submit evidence on the questions raised by the objections. On December 8, 1961, the Regional Director issued a Supplemental Decision, Order and Direction of Second Election. In this Supplemental Decision, the Regional Director overruled other objections filed by the Union but concluded that a speech made by a Company official and a letter sent by the Company to employees "interfered with the election atmosphere to such an extent that the employees' freedom of choice was impaired and accordingly the election should be set aside."
In view of his decision to set aside the election the Regional Director did not rule on the challenged ballots. On December 14, 1961, the Company filed a request with the Board for review of the Supplemental Decision asserting as a reason, among others, the failure of the Regional Director to afford it a hearing at which it could present testimony. The Board on January 16, 1962, denied the Company's request for review, finding that it raised no substantial question of fact or law.
A second election was held on February 19, 1962, which resulted in 82 votes for the Union and 72 against. On February 23, 1962, the Company filed objections to this election, alleging in substance that it was denied due process by the Board's failure to afford it a hearing with respect to the decision to set aside the first election, and that the setting aside of the first election and holding a new election for the reason specified by the Regional Director infringed on the Company's freedom of speech. The Company also alleged that holding the second election four months after the first was contrary to the Act. On April 5, 1962, the Regional Director issued a Second Supplemental Decision and Certification of Representative. In this decision the Regional Director overruled the Company's objections and certified the Union as bargaining representative for the employees. On April 30, 1962, the Board denied the Company's request for a review of this Second Supplemental Decision.
Following the Union's certification, the Company refused to bargain with the Union, contending that the election and certification were improper. On May 24, 1962, the Union filed an unfair labor practice charge, alleging that the Company's refusal to bargain violated Section 8(a)(1) and (5) of the Act. The Regional Director subsequently issued a complaint in this matter.At the ensuing hearing, the Company offered to produce the testimony of three hourly and two supervisory employees and a member of management to testify concerning the offending speech and letter.*fn1 An objection to the offer was sustained on the ground that it was an attempt to relitigate an issue already determined by the Board. The Trial Examiner concluded that the Company had violated the Act.
Upon the basis of the foregoing facts, the Board, affirming the Trial Examiner, concluded that the Company, by its refusal to bargain collectively with the Union, violated Section 8(a)(1) and (5) of the Act.
The components of the Company's defense to the Board's petition are, first, that the certification is subject to review in this enforcement proceeding; second, that the certification is invalid because no objection had been made concerning the conduct invoked as the ground for setting aside the first election; third, that the speech and letter were privileged under the Act; and fourth, that the Board did not produce at an open hearing substantial evidence, as it should have, to show that the speech and letter violated the Act, and the Company should have been permitted to prove that the speech and letter did not violate the Act.
In accepting the Trial Examiner's findings and recommendations in the unfair labor practice proceeding, the Board subscribed to his refusal to reenter ground already covered by the Board's decision in the certification proceedings. The policy of the Board is indicated in Mountain States T. & T. Co. v. Local Union 532 ; 136 N.L.R.B. No. 96. While the Company is apprehensive that this policy might affect the scope of our inquiry in this enforcement proceeding, we find nothing in it so limiting. The Boarddoes not so contend. Since the Company has preserved its position throughout, there is no occasion to extend our decision in this direction unless we should conclude that the Company is right in its defense. Cf. Inland Empire Dist. Council v. Millis, 325 U.S. 697, 700 (1945). However, we note that attacks on an election have been reviewed as part of the record in unfair labor practice proceedings, since there is no direct review of a certification; e.g. N.L.R.B. v. Joclin Manufacturing ...