Petition for Review and Cross Application for Enforcement of a Decision and Order of the National Labor Relations Board.
Becker and Hutchinson, Circuit Judges, and D. Brooks Smith, District Judge.*fn*
Before the court are, at No. 90-3446, North American Directory Corporation's (North American) petition for review of a Decision and Order of the National Labor Relations Board (the Board) finding North American guilty of an unfair labor practice, and, at No. 90-3543, the Board's cross-application for enforcement of its Order requiring North American to recognize and collectively bargain with the Graphic Communications Union, Local 735-S.*fn1 We will deny North American's petition for review and grant enforcement of the Board's Order.
North American Directory Corporation prints telephone directories at its plant in Hazleton, Pennsylvania. In 1989, the Graphic Communications Union, Local 735-S, sought to organize the Hazleton plant's 64 production and maintenance employees, and filed its petition for election with the Board on June 14, 1989. North American and Local 735-S executed a standard stipulated election agreement calling for an election on July 20, 1989, and each side began distributing campaign literature. North American printed flyers on company memorandum letterhead which bore the company's distinctive printing press logo. They were mailed in company envelopes, and concluded with the exhortation "Vote Union No on July 20th."
On the day before the election, July 19, 1989, North American workers received a plain envelope containing a memo on what appeared to be paper copied from company memorandum letterhead. The memo contrasted an alleged attempt to reduce the salary of second shift workers by twenty-five cents with the amount of North American Vice President David Pilcher's weekly salary, a fact not generally known to the workers. It concluded with the amended exhortation "Vote Union -- on July 20th." The existence of this mailing was not made known to North American until the afternoon of July 19, 1989. Because the election was scheduled to begin at the first and third shift change at 6:30 the following morning, less than twenty-four hours later, North American did not attempt to speak to its employees in response to the forged mailing. See Peerless Plywood Co., 107 N.L.R.B. 427, 429 (1953) (employer and union prohibited from making election speeches on company time within twenty-four (24) hours before election). The election resulted in a vote of 38 for and 26 against the Union.
North American filed an objection to the election results, alleging that the forged letter confused voters as to whether there had been a last minute change in North American's policy, and requested a hearing on its objection. North American submitted affidavits from Vice President Pilcher and nine employees, most of whom averred that there was confusion among the voting employees as to the origin and meaning of the letter. North American also submitted affidavits suggesting that the Union was responsible for the forgery and that an executive secretary who had recently been fired for suspected pro-union activity was responsible for providing the confidential salary information, company letterhead stationery, and mailing addresses of North American employees to the Union. The Board's Regional Director conducted an investigation and obtained an affidavit from the executive secretary denying her involvement in the forgery, as well as affidavits from two Graphic Communications Union representatives denying the Union's responsibility for the forgery and the mailing. North American filed a motion for the production of these affidavits.
The Regional Director of the Board recommended that North American's objection to certification of Local 735-S be overruled and that the Local be certified as the bargaining representative. The Regional Director did not, however, attach the three affidavits he had obtained to his Report and Recommendation, nor did he disclose them to North American despite its motion to produce. On November 20, 1989, the Board issued its decision certifying Local 735-S.
Following certification, Local 735-S demanded recognition by North American, but the company refused to bargain with the Local because of the forged pre-election mailing. Local 735-S filed an unfair labor practice charge, upon which the Board's general counsel filed a complaint and motion for summary judgment. The Board granted the motion for summary judgment and issued a cease and desist order on June 25, 1990. North American Directory Corp. and Graphic Communications International Union, AFL-CI0, Local 735-S, 298 N.L.R.B. 127 (1990). North American petitioned for review of the cease and desist order, and the Board applied for enforcement.*fn2
North American's petition raises both an issue of procedure and an issue of substantive law. Procedurally, North American asserts that it was denied due process, or at least a fair application of the National Labor Relations Act, by the Regional Director's refusal to produce the affidavits received from the union and from the former North American employee during the course of his investigation. North American argues that because the affidavits were not produced (indeed its motion was not ruled on until months after the Board had certified Local 735-S as the bargaining agent) and did not become part of the record, the Board's decision adopting the Regional Director's recommendation and this Court's review of that decision are based on an incomplete record. Substantively, North American asserts that the Board's decision contravenes its long-standing ...