National Labor Relations Board, United Steelworkers of America, Afl-Cio-Clc, Intervenor v. Gormac Custom Manufacturing, Inc.

litigants instead believe We 1304), duty could the section with n attorneys) should course, (and, their of have arisen. presiding the of impartiality assume Robison, v. Corp. Pentax through pore than judge, rather by reh’g on (Fed.Cir.1997), amended mat financial and affairs Thus, judge’s private (Fed.Cir.1998). F.3d 760 duty have ethical Further, five judges count judgment on ters. court’s district at information above the record our observation “disclose comports with to not state or may parties plaintiff “a judge 8-9 that believes pages which pertinent unless to claim false relevant consider might reverse lawyers defendant attached obligation Porter disqualification.” of question before or state- record the false or made Cir. Singletary, ment.” should and counsel 1995). litigants “[B]oth comрly judges to rely upon able Ill In Ibid. of Ethics.” Canons own required us appeal this Because did possibly case, Holschuh Judge ATMI’s “obligation,” meaning of discern sufficiently rele the matter not consider the district review of plenary engaged in disclosure, nondisclo his but to merit vant Griggs, In re Cf., e.g., order. final court’s duty to inves ATMI a not vest did sure Cir.1992) (“Because 54, 56 him. tigate statutory of an issue case presents this law, of question ais interpretation, (cid:127) IV is decision court’s of district review our of disposition novo.”). our light de court of the district judgment law, given a matter case AFFIRMED. novo review Beckwith’s de Judge District decision, we Judge Holschuh’s District Hol Judge whether need decide no see recusal, to re mandatory faced schuh to decide judge district a third

quire viablе claims. ATMI has RELATIONS LABOR NATIONAL clarify Nevertheless, we write Petitioner, BOARD, investigate duty to litigant’s man not include case does of his facts America, United Steelworkers im judge’s into a investigations for date Intervenor, AFL-CIO-CLC, by sug erred Beckwith Judge partiality. proclaiming After otherwise. gesting [filing Relator employed strategy “[t]he CUSTOM GORMAC after receiv weeks motion two recusal Respondent. MANUFACTURING, INC., ruling] dispositive unfavorable ing an refuses best, the Court No. 98-5830. questionable encourage Relator reward Appeals, Court States United that subsection trend,” she concluded Circuit. Sixth have “[IJitigants stating that opinion her court and inform investigate duty to 20, 1999. July Argued court before biases any perceived Sept. Decided expense time and invest parties reason no posited Rehearing Relator has a case. and Suggestion Rehearing into inquiry timely to make failure Nov. Denied En Banc United background.” Holschuh’s Judge In Textile American rel. ex States Mfrs. Limited, Inc., 179 Inc. v. stitute 1997). (S.D.Ohio 541, F.R.D. bar-

(“USWA”), certified the elected and company’s representative gaining employees.1 Gormac unit designated certification validity of the attacks eviden- to an it was entitled contends (briefed), David Ha- A. Cohen Richard rep- objections to the hearing on tiary Board, Relations benstreit, Labor National following For election.2 resentation Counsel, A. Arm- Aileen of General Office NLRB’s deci- reasons, REVERSE the Counsel, D. John Asso. Gen. strong, Dep. an for REMAND sion and briefed), Peter (argued and Burgoyne hearing. Board, Relations Winkler, Labor National Branch, L. Ja- Meredith Court Appellate I. Board, Relations son, Labor National to determine election DC, In an for Petitioner. Washington, collectively represent would the USWA briefed), (argued and Jury R. David of of unit bargaining proposed America, AFL- of Steelworkers United 21, 1996, Gormac, May held respondent PA, for Intervenor. CIO-CLC, Pittsburgh, voters, eligible forty-five consisting of (briefed), P. Briskin Seth T. Billick John USWA, sixteen for cast nineteen ballots Belkin, briefed), Billick & (argued and challenged.3 were and four ballots against, OH, Cleveland, Respondent. Harrold, out- from this apparent things Two are SILER, WELLFORD, and (1) several votes Before: of a switch come: GILMAN, Judges. contest, Circuit this close the outcome affect reason, six (2) unexplained for some and WELLFORD, J., opiniоn delivered vote—(cid:127) did not voters eligible forty-five J., SILER, joined. court, in which of the half of just Had percent. thirteen some 751-53), GILMAN, delivered (pp. J. might voted, the outcome these absentees opinion. dissenting separate different. have been objection to OPINION The Gormae’s basis set out results is and its election WELLFORD, Judge. Circuit dated report director’s regional NLRB Relations Labor The National 25, 1996: July - to 29 pursuant this petitions court Board on June period lunch [DJuring the 160(e) of its or § for enforcement U.S.C. of the hours start within three Manufactur Gormac Custom requiring der dis [union] the Petitioner (“Gormac”) to bargain. Inc. ing, list to voters leafletf[4 ] tributed violated company ruled NLRB signatures purported names and ed the (5) 8(a)(1) of the National sections expressed who of 31 Gormac Act, U.S.C. Relations Labor the Union. to vote favor intent bargain 158(a)(1) (5), refusing to §§ docu that the contends Employer America Steelworkers ‍​‌‌​​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌‍the United with by the employer against ceeding brought “All full-time as follows: unit defined 1. This Arvin Corp., Division A Maremont NLRB.” production and mainte- regular part-time Industries Employer's employed at the nance Co., Inc., Cir.1999) (citing v. Duriron NLRB excluding cleri- facility, all office Lima North Cir.1992)). n. 1 supervisors as de- guards and cal in the Act.” fined opinion with this not concerned in areWe our- challenge; we confine legality of the proceedings election "Because union hearing on request courts, to Gormac's selves an em- by the directly reviewable itself. the fairness desiring judicial determination ployer bargain refuse must of an election fairness exhibit to as an flyer/leaflet attached 4. The may then union. The opinion. pro- practice challenged labor unfair misrepresented ment major the Union’s deemed objection the Gormac to be “with- status, ity created a impression false of out merit.” violated the confiden is no There evidence in the appendix tiality of the showing of interest. The that the union responded itself to Gormac’s Employer further contends the Pe objection. Despite respondent’s objections titioner’s use of employee signatures regional report, director’s unauthorized, decided, NLRB without a hearing ap- used in deceptive manner, an [sic] which parеntly any response by USWA, and with

was tantamount to forgery, and that the reference to the employee brief “authoriza- employer had insufficient opportunity cards,5 tion” objections that the were mer- respond to the leaflet. itless. The NLRB decided that “even if

In objections of its the Em- oral misrepresentations were made to ployer submitted affidavits of employees these employees regarding the confiden- that, who testified a few prior hours to tiality' of signatures,” the use made the the Petitioner distributed by the union publishing the hour late leaflet which contained their names and leaflet at issue did not constitute a viola- signatures. The cap- document was tion of the Board’s Midland National Life tioned the majority! “We’re We’re vot- 304A, Ins. Co. v. Local 263 NLRB ing yes!” The three employees (1982) who WL 23832 rule.6 It was that, submitted affidavits stated al- not pervasive deception nor misrepresen though their names on the were union tation “artful enough to interfere” with a leaflet, they had voted “no” in the choice,” elec- “fair and free according to the tion and they never authorized the Peti- Dayton Board. See Hudson Dept. Store tioner to use conjunction NLRB, their names in (6th Cir.1993). pro-union with leaflets. course, In due Gormac has brought an The leaflet contains following the lan- appeal to this court the NLRB’s refus- guage [in lower case in lighter al to hearing afford it a on the fairness and “ print]: *The names on listed this leaf- legality of the in light of the last- let represent Gormac workers who au- hour’s by circulation union flyer the of the thorized the USWA to use their names in question which contained the purported on union leaflets.” signatures of thirty-one employees, a sub- (footnote omitted.) JA 35 USWA denied stantial majority, and an that indication charges the any misrepresentation, ac- voting “yes” would be for the USWA. cording to regional director. above, Because As indicated the Board held that the authorization form used USWA at even if misrepresentations oral con- about the outset of its organizing campaign con- fidentiality were made by the union to tained, among other things, language employees that signatures to obtain “au- might “sign” USWA employee’s cards, “name thorization” this constituted no vio- leaflets,” to union regional lation director of the Act. 5. The authorization ing cards at issue read campaign will, statements. We howev- hereby er, follows: "I authorize the United Steel- party intervene in where a has represent workers of America to pur- me for forged documents which render poses bargaining my collective em- recognize propaganda voters unable to ployer. This further thus, authorizes Union it what is. we will set an aside my send name to the National Labor Rela- not repre- because of the substance of the sign my tions Board and name to union sentation, leaf- but deceptive because lets.” JA 54. made, manner in which it was a manner which renders unable to evalu- 6. The Midlаnd rule is as follows: forgery ate for what it is. today [W]e longer rule that Id. at subsequently we will no 132. We have modified probe falsity parties’ into the truth or rule of Van case Dorn Plastic statements, campaign (6th and that we will Mach. not Co. v. 736 F.2d 343 Cir. 1984), set aside on elections the basis of mislead- which we will discuss infra. 102.69(d) Pack NLRB v. Tennessee §

II. 172, 177- Div., ers, Frosty Morn A. Cir.1967). NLRB v. Basic also di- regional that argues Gormac 263-64 Prods., Wire have held should the NLRB rector and/or However, is not mission “[o]ur objections hearing on its order, no rubber-stamp [Board’s] affida- that It contends the election. Shrader’s, F.2d at asked.” questions averred, which vits of “Instead, determin course of indications public to the contrary has abused the Board ing whether ‍​‌‌​​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌‍assured leaflet, they were union by Congress entrustеd discretion cards representatives fairly, disputes representation adjudicate Fur- “confidential.” kept signed the Board’s satisfy ourselves we must thermore, these three procedures product order is leaflet in signed they had Id. fundamentally fair.” “yes” purported question and/or the alle determining regional forgeries. demon by the three hearing, gations stated that director, without (in a “substantial and unknown a so existence fashion denied strate the union reflects) issue,” misrep- “it we look to that must factual far record material as the man- in previ or intent we have purpose its in resented the circumstances specifically grant three or ner.” The union elections ously overturned respective affidavits forth nоte also set first hearings. evidentiary We ed sign persuaded that when seeking to overturn party “[a] that early days during the “petition” bears representation aof results were “told that campaign, organizing that showing ‘the burden ” to obtain a only be used petition Maremont, fairly,’ see not conducted was (emphasis election.” representation Superi NLRB v. (quoting at 577 177 F.3d interve- added.) in its responds USWA (6th 1178, Inc., 1180 F.2d 839 Coatings, is well- “[i]t to this brief court nor’s satisfy Cir.1988)), order “[i]n and that however, and this the Board settled, burden, must dem objecting party the con- evaluating from refrain court will which inter conduct ... ‘unlawful onstrate [T]he campaign communication.... tent of free exercise employees’ fered with an em- assume that this court Board materially that it such аn extent choice to document, weighing a capable of ployee is ” Id. the result election.’ affected 10, (Br., pp. content, and its source.” 196). Shrader’s, Inc., (quoting 11). did not apparently the union Since where “no It is well-settled objections, response to Gormac’s file a the mis but where proved, can forgery of these truthfulness Board assumed de and the pervasive is representation so employees, sworn assertions will be ception so artful matter of that as a ultimately found but untruth separate truth unable to from support a law, did not allegations these a free fair choice right where overturning of much less hearing, war affected,” is new election a will be election. Machinery Co. Dorn Plastic Van ranted. of an Board’s denial review the We Cir.1984), NLRB, 343, F.2d 348 736 of discre hearing for an abuse denied, S.Ct. 469 U.S. 105 cert. Shrader’s, Inc., NLRB v. tion. added). (1985)(emphasis 84 L.Ed.2d Recently, in Of Plastics, Hub NLRB Inc. v. Depot, fice (6th Cir.1995), case where another “only (6th Cir.1999), when held that we the em- hearing on Board was no there the existence parties show objecting ” therein a expressed challenges, we ployer issues’ factual and material 'substantial “the manner concern with particular C.F.R. citing 29 hearing required, a than should direct the Board have a hearing rather its exact misrepresentation,” Moreover, a principle we stated misrepresenta- content. on asserted serious union the Board’s decidedly different from there very in a tions close electiоn an election (and union’s) apply that we urging day involving peti- scenario circulation of a only very limited and Midland rule with tion on purportedly false its face. We do exception: cramped juncture not determine at this whether the Dayton Dorn and Hudson stand Van election should be set aside. although em- proposition

for the

ployees naturally campaign propa- treat B. ganda skepticism, on occasion a standards, Employing above be, misrepresentation may though not a hold that Gormac did establish the exis forgery, skepticism so artful that tence of substantial and material factual overcome, resulting employees believ- issues, thus, should have granted been must ing campaign propagаnda that the hearing by the NLRB. We come to this absolutely misrepresen- be true. Such First, conclusion for three reasons. in ap may pervasive that it is tation also be so plying the aforementioned five factor Mit likely large enough group to influence test, we And that the cut in chellace factors to have a material effect Furthermore, favor Gormac. the close the election. weighs ness of the election factor also Id. at 618. Second, favor of Gormac. we find that The five factor test often used decid- Gormac made out sufficient case that the ing controversy this kind of articulat- pre-election polling conducted the Un Mitchellace, NLRB, ed in Inc. v. 90 F.3d ion improper deceрtive. Finally, was 1150, 1155 These factors we have examined other recent cases from (1) timing are as follows: the of the mis- circuit, this and we have found that in (2) representation; employer whether the much less dubious circumstances than that was aware of the situation and had an here, hearings before the NLRB have (3) opportunity respond; to the extent of granted. been We discuss each of these (4) misrepresentation; the the whether in turn. reasons misrepresentation source of the was iden- (5) tified; and whether there is evidence 1. Five Factor Mitchellace Test employees “actually were affected” Four of the five factors articulated by misrepresentation. the Yet another in favor The Mitchellace cut of Gormac. plays part analysis factor that a in our is factor, timing, heavily cuts first favor election; the closeness of the when the close, flyer at issue was made Gormac. great election is will use care in we Plastics, public a mere two to three hours before reviewing the case. See Hub 52 (“When election, at the election is a F.3d 613 close the and few cases deal with such one, we examine inferences Indeed, [of these alleged misrepresentation. a late care.”); great also Board] with see Col requiring a se rule a new election has per NLRB, quest Energy, Inc. by adopted been the Board cases where (6th Cir.1992) (holding party representatives pro- convеrse with important closeness of the election is an spective waiting in line to vote. voters See determining whether the consideration Milchem, Inc., 362, 363,1968 170 N.L.R.B. impact misconduct has a material on the Hudson, (1968); Dayton WL 18776 election). representation fairness of the Furthermore, F.2d at 363-364. closer conduct oc- inappropriate the election recognize that it is a “serious mea- We curs, the more serious it becomes. We any sure” to disturb the results of misrepresentation made Mitchellace, have held that a conducted the Board. See Here, however, days two before election warranted 90 F.3d at 1156. we have Plastics, election, 52 F.3d at only question before us whether we new see Hub Thus, in favor of this factor cuts Gormac held, 612-13, where there have also so made seven hours as well. misrepresentation awas NLRB v. Su- see polls opened, before is important most factor Probably the Inc., 1178, 1182- Coatings,

perior one, misrepre- the extent the third (6th Cir.1988), morning of or even that the extent We hold sentation. Mitchellace, see at is serious here because misrepresentation not determina- Timing by itself one, misrepresentations but two tive, three of the aforementioned and all representa- the union’s made allegedly fac- on the other ultimately turned cases was misrepresentation The first tives. tors. employees, when to the three made factor is to the first Interrelated be their names would promised faсtor, employer was second that their confidential and kept had an of the communication aware only purpose for the used be It is doubtful that respond. to opportunity Indeed, signa- getting an election. all flyer at even knew about Gormac for much up being used ended tures election, considering it before they envi- purpose than had different ‍​‌‌​​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌‍prior to just couple of hours posted the three Though sioned. event, polls. opening of gave card which signed authorization not know that the that Gormac did clear names to use their permission the NLRB until misrepresentations flyer contained to flyers, agree at time did no forward a came few yes” for the union or allow “vote told what the eleсtion and days after others encourage signatures to significant factor is because knew. This Mare recent cases of yes.”. to “vote this recent where court a number of and Keeler Die Case mont grant not to the Board’s decision upheld (6th Cir.1999), distinguishable F.3d 535 did have a hearing, employer new cases, way, in both of those since Maremont, 177 respond. chance to agree “vote explicitly did (“Because had Maremount was) though it yes” (non-binding rumor, alleg- respond to the chance to used in a leaflet signatures have their reduced.”); misleading effects edly “vote they let others know (“Mitchellace Mitchellace, 90 F.3d at signed employees Even if the had yes.”7 fliers, and was able to knew about the of confi аlleged promises without the of an effective counter-flier distribute using signa of their dentiality, this action own.”); Coatings, 839 F.2d Superior which had not purposes tures for repre- of the (employer was aware 1182-83 suspect. Com highly authorized would dis- opportunity had an to and sentations resulted). confl- alleged promises of with the misconception bined pel whatever Maremont, (“The among prior of the employees to the date fol- 177 F.3d at 575 top every sign lowing language appeared at the simply asked signature page petition, lines: top: of the above clearly at the ‘We are sheets Corporation years to im- has had We, Maremont undersigned the Union! working prove wages, and condi- our benefits voting YES on election of Keeler Die Cast fairly. They us have contin- and to treat tions uously company’s argu- day. We have all the heard promises. up to live failed listened and have ments and accusations give a ourselves chance Now it’s time standing up for promises. But we are to their through representation by the International ourselves, and YES our our futures. families Aerospace and Machinists Association dignity. a voice justice. YES for YES promise to vote Workers. We have made Furthermore, workplace.’ sheets in our Day August We have on Election 9th. YES — bottom, ‘I un- at the contained statement Association of the International authorized my signature will be derstand that on handouts to use our Machinists names my way or in othеr shows leaflet YES.”); Keeler, encourage others to VOTE taking charge my own fu- commitment union, ("Here, an F.3d at 538 ”). ture.' support the level of its to ascertain effort dentiality, misrepresentation, which we take as true for the for the first the three obviously employees were affected in that nature purposes appeal, of this the serious signatures, had been clear. misrepresentations of the becomes confidential, promised would be were made misrepresentation was made The second public. misrepresenta- As for the second flyer when the with the to the electorate tion, picture the false of the extent of posted stating was employees’ names support Union that was сreated in all yes. would vote signatories that each of the probability impact had on the election. misrepresentation significance The of this In a stipulation for the election in this case of the extent is that it created false sense before the union fired its late and unex- have support, of Union which we found broadside, pected “vote Yes” the first the sort of “precisely perva- before to be agreement parties specifically: of the was and artful misrepresentation decep- sive I. SECRET A BALLOT. secret- tion that ... could ... be the basis for ballot election shall be held under the Hudson, Dayton an election.” setting supervision Regional aside Director in Indeed, agreed the unit defined belоw at the pra Supreme at 367. su place, under time the Board’s Rules denounced actions previously Court has Regulations. portrait employee a false “paint ballot,” support during campaign.” Why its election why JA “secret Co., importance? Simply was this of first Manufacturing NLRB v. be- Savair integrity confidentiality cause the 270, 277, 495, 38 U.S. 94 S.Ct. L.Ed.2d voting at the heart of a secret democrat- (1973), in Prudential Insurance quoted society, ic and this includes industrial de- Co. America v. mocracy as well. The “revelation” that a (6th Cir.1976).8 Thus, misrep- this second majority of identified loill be creating a false resentation of sense voting way a certain in an election seems extent serious as well.9 of Union to us to be of substantial adverse effect This third factоr cuts favor of Gormac. election, especially a secret if ballot factor, fourth whether the source flyer untrue.10 repre- “revelation” is identified, misrepresentation was cuts sented, effect, only that the election was union, flyer in favor of the since the did verifying large matter of a demonstrated state, print, albeit small the USWA majority voting “yes” who were responsible for it. thirty- their own evidenced — factor, The final whether there is evi- eligible forty- one out of an voter total of dence that employees were affected thirty-one five. This indication that of for- “yes” misrepresentations, ty-five favors Gormac. As votes were committed to vote quota- paragraph Manufacturing, 414 94 8.The from which the above Savair U.S. at S.Ct. 495. tion was taken reads as follows: intentions, employ- Whatever his true an It be noted that it is unclear how should signs recognition slip prior ee who a to an many any, misrepre- had other if indicating election is to other workers that gamer sentations made to them in order to supports he the union. His outward man- flyer. signatures for the We do take ifestation of often serves as a useful note, though, although of the fact that there campaign tool in the union's hands to con- flyer, only thirty-one on the were union, Union, vince other to vote for the twenty up voting ended for the a mere only many employees respect if because sixty-five percent of that listed on the leaflet. view, their coworkеrs' views on the unionization simply our this is further evidence In By permitting hearing granted issue. the union to offer to that a should have been waive an initiation fee for those Gormac. signing recognition slip prior a to the elec- tion, buy point goes the Board allows the union to our 10. This hand hand with paint portrait pre- long-standing skepticism a false of endorsements court’s towards side, during employee support polling its election cam- that we discuss election either B(2), paign. in Part infra. Die; nearly not as election was Keeler employ- the six may have influenced well close; “petition” on the language and the quite possible It is who did not vote. ees hold that materially different. We flyer, con- was these six voters saw shоwing of coer- prima not matter facie their vote would there was cluded that pre-election conclusion in its already foregone cion here the Union since it was win, and decided not that the Union would activities. polling that the sixth factor also note to vote. We the circumstances were In cases where Plastics, the closeness articulated in Hub evidentiary hearings suspect, far less According- significant.11 by the employers Board. granted to hearing should have ly, an Kusan, Cast, supra; supra; Keeler Die to Gormac. granted been 156 F.3d Heinz Pet Products (6th Cir.1998) (un 1229, 1998 WL 449771 Polling 2. Pre-Election (timing not as close to elec published) polling by “Although pre-election here; employer countered the tion as coercive, inherently an the union is not close); as misrepresentation; election not challenge a successfully employer may Co., Inc., Transportation NLRB v. J.P. if he shows that representation election 49, 1998 WL 869984 Cir. polling was coercive and in pre-election (election close; 1998) (unpublished) of the election.” fact influenced the result only a few misrepresentation ‍​‌‌​​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌‍made em NLRB, 749 Manufacturing Co. v. Kusan Auction, Auto Inc. Detroit ployees); (6th Cir.1984) (citing NLRB (6th Cir.1999) NLRB, 1999 WL 435160 Co., Manufacturing v. Claxton (election close; not as no (unpublished) Keeler, (5th Cir.1980)); see also only misrepresentations, allegations (“Nevertheless, employer F.3d at 538 (election Shrader’s, supra vote-buying); successfully challenge representa may close; allegаtions misrepre- no not as pre-election if he tion shows Maremont, coercion); sentations, only su- in fact by the union was coercive polling Press, NLRB v. Dickinson pra; see also and in fact influenced the result (6th Cir.1998); Inc., election.”) (internal marks quotation Pinkerton’s, Inc., 621 F.2d NLRB v. omitted). employer prohibit An citation Thus, evidentiary poll conducting pre-election ed from routinely granted to hearings have been Die, In supra at 538. Keel all. See Keeler far less serious than investigate allegations Die, showing that no er where we held Furthermore, those that were made here. made, the union had been main coercion nor the Board en- regional director through pre “attempted tained that analysis of the gagеd type in the circum- campaign] poll [a vote YES required. in this that is stances case accurately chances of gauge the UAW’s Maremont, reference to the spe- we made Furthermore, ultimate success.” Id. there findings hearing cific officer that in order misrepresentations were no made hearing involving circum- conducted sign the authori get more to, distinguishable similar but card, high A far stances zation as occurred here. Indeed, from,12 present case. even workers voted in percentage eligible er organizers Regional place, the union opened by sons. In the first was later Di- One employees’ signatures NLRB to reveal an additional in Maremont “solicited rector of the stating signing employ- petition that the vote for the Union. Since that rendered the on a " irrelevant, Indeed, those signers yes.' other three votes ballots ees would 'Vote opened. be noted that were not It should promise to vote YES on Election “made challenged by unopened Maremont, supra (emphasis ballots Day.” at 575 Union, added).- not Gormac. language There was other of authori- ty "to use our on handouts to encour- names might Board, age language others.” Id. elimi- argument, This just before oral 12. The Maremont, challenge in the nate the kind of made instant which in- called our attention close, and, was not more union case. volved a somewhat similar leaflet. hearing at which important, there was a vari- distinguishable for several rea- Maremont is gery, enough look to the to interfere with free and in that “we Maremont employees. case to determine fair choice of the present facts question in in fact petition in analysis engaged Because the employees’ free and with the interfered by Board or above was not conducted Maremont, As supra fair choice.” regional director and because eviden- Shrader’s, company F.2d at in routinely in tiary hearings granted are pres- opportunity not receive a fair did allegations involving far less serious Thus, in just case. as we did ent here, than those the NLRB abused its Shrader’s, objections that “the we find denying hearing. in discretion Gormac by the affidavits submitted supporting Accordingly, we аnd RE- REVERSE prima out a facie case for company made hearing MAND to the NLRB for a on the election; therefore, no invalidating the herein issues raised and discussed. regional di- matter what evidence the com- ‘investigation’ produced, rector’s GILMAN, Judge, dissenting. Circuit clearly demonstrated that sub- pany had in by As stated this court Van Dorn dispute, and material facts were stantial NLRB, Machinery 736 F.2d Plastic Co. v. dispute proper that resolution Cir.1984), the fact that a Id. evidentiary hearing.” an demanded misleading representations union makes justify III. per setting does not se aside Rather, an elec- election. we will set aside that are satisfied in this case We “the only misrepre- tion cases which that it Board its discretion and abused deception and the pervasive sentation is so unfairly denying hearing acted that be so artful will unable that the issues are case. We satisfied from untruth and where separate in a truth substantial and material close both examination deserving right careful to a free and fair choice will be recog- the Board. We this court and I majority, affected.” Id. Unlike the find the burden of es- nize that Gormac bears no evidence that the Gormac Board the conten- tablishing before the pamphlet as recognize were unable to prevented a free and tions which it asserts propaganda, other than union anything “ agree with the fair election. We cannot ‘materially af union’s conduct ” Board, however, if that even Gormac’s Mare fected the result of the election.’ (or be) proposed claims were taken as NLRB, Corp. v. mont true, that violation of the Act occurred. no (6th Cir.1999) NLRB v. Shrad (quoting If, indeed, representatives promised (6th Cir.1991)). er’s, Inc., 194,196 signing “peti- that their majority opinion places significant confidential, kept tion” would be or card on the five-factor test set forth weight merely purpose that its and/or Mitchellace, Inc. v. obtain a fair or that then- used to (6th Cir.1996), and finds that four of as an affirmative names would not be used weigh in favor of Gormac. the five factors indication, final vote then such use was (the two factors agree I the first by the union in this case actually made leaflet aware- timing of the and Gormac’s gross misrepresеntation be a ness) Gormac, and that weigh in favor of tactic. We would deliberately deceitful timing appears particu- of the leaflet conclude, we cer- although in such event— union the last larly give calculated to tainly presume infer or do not however, clear, law word. The way argues happened Gormac —that conduct, proof without misleading guilty pervasive deception the union was employees’ free conduct affected the misrepresentation, artful akin to for- such pertinent "petition,” any cover-up of the employees with re- or ous noted on both sides inducements, language handbill in Maremont therein. The spect to whether there were day before the election. misrepresentations, purpose was circulated the about the of the 752 than that choice, interpreted any in manner other setting grounds is not

and fair yes” Nat’l to “vote for the union they an election. See Midland intended aside Life 127, 133, Co., 1982 WL objections letting 263 N.L.R.B. others Ins. and had no (1982) (“[W]e longer probe will no prior Like the two know of that fact. falsity parties’ of the into the truth or cases, in the instant there is no evidence statements, ... will not campaign that contention case to Gormac’s of mislead- aside on the basis set elections or coerced employees were threatened statements”). ing campaign authorization cards or signing into of the union leaflet affected the result contrаst, remaining I find that In employees the three now election. As to in weigh favor of the Mitchellace factors of confi- claiming it were assured especially I find hard to believe union. that, in even if any deception” dentiality, “artful there is no evidence there was (a) signed true, authorization cards light alleged the union’s they say what is (b) clearly identified substantially affected misrepresentation (c) handout, lack source of the the outcome of the election. that the election results were ac- evidence hand, case is the instant On other fact, by the leaflet. In tually affected from this court’s earlier de- distinguishable in majority its footnote noted Shrader’s, Inc., in NLRB v. cision signed who only 20 of the 31 (6th Cir.1991). case, In that the сourt actually union. voted for the leaflet employer presented prima that the held signing fact that over 35% of those invalidating the union elec- case for facie it judgment their own when exercised coercion, grounds improper tion on the came time to cast their votes makes it hearing thereby requiring evidentiary petition that the inter- difficult to believe union in the NLRB. The Shrader’s before free and fair employees’ fered with the T- charged distributing hats and was choice, picture or that “the false during shirts to the before and support that was cre- extent of the Union voting periods as a bribe or reward impact in all had an probability ated at voting for the union. See id. election.” court held that these items were “suffi- indistinguishable I further find this case eyes in ciently valuable and desirable Corp. v. principle in from Maremont offered, person to whom NLRB, Cir.1999), and 177 F.3d 573 per- potential have the to influence NLRB, F.3d 535

Keeler Die Cast contrast, In there son’s vote.” Id. at 198. cases, In both of these that the is no evidence in the instant case explicitly yes” to “vote agreed or re- employees were offered bribe and to have their for the union exchange for their votes. The fact ward in in a others know that leaflet let required hearing that an upheld the they would do so. This court Shrader’s, therefore, does not necessi- case, finding in each that such hearing present such a case. tate yes” petition per is neither se coer- “vote Finally, it the fact that the NLRB has objeсtionable cive nor on the basis that a free and employees’ right granted evidentiary hearings affects ‍​‌‌​​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌‍the other Maremont, 111 F.3d at fair choice. See that it provides no basis to believe Keeler, 578; 538-39. declining grant abused its discretion in A hearing such a the instant ease. case, employ- the Gormac the instant only if hearing required Gormac able that ex- signed ees authorization cards to show the existence of “substantial the union to pressed both desire for Depot, Inc. material factual issues.” them and allowed the union to represent Office (6th Cir.1999) (See footnote use their names leaflets. 102.69(d)). § (quoting For C.F.R. majority opinion.) frankly I find above, I do not believe to believe that this could be reasons difficult in this case. issues exist any such a close

event, this is the extent to find pressed be hard

question, we would its discretion the Board abused evidentiary hearing. to hold an

declining affirm the decision

I therefore

the NLRB. Footnotes al., AIKEN, et Russell

William

Plaintiffs-Appellants, Tennessee, MEMPHIS,

CITY OF

Defendant-Appellee. 97-6371.

No. Appeals,

United States Court

Sixth Circuit.

Argued Dec. Sept.

Decided

Case Details

Case Name: National Labor Relations Board, United Steelworkers of America, Afl-Cio-Clc, Intervenor v. Gormac Custom Manufacturing, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 3, 1999

Citation: 190 F.3d 742

Docket Number: 98-5830

Court Abbreviation: 6th Cir.