National Labor Relations Board v. Valley Bakery, Inc.

POOLE, Circuit Judge,

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 would be able to evaluate the threat of firing as illogical. See Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1344 (9th Cir.1987) (abuse of discretion standard). Threats of job loss that cannot be carried out do not provide a basis for invalidating the election. See NLRB v. Chicago Metallic Corp., 794 F.2d 527, 532 (9th Cir.1986) (“[c]oercive misconduct only warrants the setting aside of an election when it so influenced potential voters that a free choice [became] impossible”) (quotation omitted);. NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924 (5th Cir.1976) (union’s threat that employees would be fired if the union lost was not objectionable because the threat was unenforceable), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1105 , 51 L.Ed.2d 538 (1977); NLRB v. Bostik Div., USM Corp., 517 F.2d 971, 973-74 (6th Cir.1975). The election arguably would be invalid, and an evidentiary hearing appropriate, only if the threat “could provoke reasonable concern among employees that they could lose their jobs.” See Van Leer Containers, Inc. v. NLRB, 841 F.2d 779, 780-81 (7th Cir.1988)' (union represented employees of new plant who reasonably could think that employees at closed plant might replace them if the union lost the election); accord Chicago Metallic Corp., 794 F.2d at' 532.

The majority nevertheless argues that an evidentiary hearing is appropriate because “there was no evidence or other adequate grounds to support a conclusion that the statements had no influence on the election.” The majority has it backwards: to obtain an evidentiary hearing, Valley had the burden of showing “substantial and material factual issues that would, if true, warrant setting aside the election.” Bell Foundry, 827 F.2d at 1344 . Even assuming that the Union made the threats, Valley did not establish a substantial and material issue of fact that the threats were anything but idle or that the employees were incapable of evaluating them. 1

The majority also argues that regardless of whether the employees objectively could consider the statements regarding discharge to be coercive, Valley is entitled to an evidentiary hearing because the employees’ subjective reactions are relevant to whether the statements coerced the employees to vote. I disagree. “[T]he Board has long held that it is impermissible to consider employee' subjective reactions to determine whether employees have been threatened or coerced.” Van Leer Containers, Inc. v. NLRB, 943 F.2d 786, 789 (7th Cir.1991). The rationale behind this rule is that “the impact of a pre-election inducement ... is to be determined by an objective analysis of its words and their context.” Molded Acoustical Prods., Inc. v. NLRB, 815 F.2d 934 , 939 (3rd Cir.), cert. denied, 484 U.S. 925 , 108 S.Ct. 286 , 98 L.Ed.2d 247 (1987). Thus, courts have “regularly refused ... to order evidentiary hearings to permit ... employees to testify concerning their subjective reactions to conduct that allegedly impaired a fair election.” Id. at 940. Moreover, Valley did not make this argument, and the majority’s reliance on it is inappropriate. See In re Riverside-Linden Invest. Co., 945 F.2d 320, 324 (9th Cir.1991); Miller v. Fairchild Indus., 797 F.2d 727 , 738 (9th Cir.1986).

In sum, the Board has broad discretion in determining the propriety of the election process. See Chicago Metallic Corp., 794 F.2d at 532 . I would uphold the Board’s discretionary determination not to hold an evidentiary hearing on the ground that Valley did not present a prima facie case for setting aside the election, and I would grant the Board’s petition for enforcement of its order that Valley bargain with the Union. Accordingly, I dissent.

. I also reject the majority’s assertion that Valley can obtain evidence only "by subpoena and an adversarial hearing" and thus is entitled to a fishing expedition to obtain evidence. See Natter Mfg. Corp. v. NLRB, 580 F.2d 948 , 952 n. 4 (9th Cir.1978), cert. denied, 439 U.S. 1128 , 99 S.Ct. 1045 , 59 L.Ed.2d 89 (1979).