National Labor Relations Board v. Superior of Missouri, Inc. ( 2000 )

McMILLIAN, Circuit Judge,

dissenting.

I respectfully dissent.

The majority distinguishes the present case from Alladin Plastics, Inc., 182 NLRB 64 (1970) (Alladin), on the ground that the Union made no effort to dispel the rumors regarding Superior’s role in the failure of the election to take place as scheduled. I believe that the facts of the present case and Alladin are sufficiently analogous to render Alladin controlling. Not only did Superior have ample time to reply to the rumors and, in fact, did so by disseminating a letter to employees, but also there is no suggestion that the Union was responsible for the rumors. Under such circumstances, the existence of the rumors was not sufficiently prejudicial to justify sustaining Superior’s objection to the conduct of the election.

I also respectfully disagree with the majority’s conclusion that the alleged statements of Union organizer, Tim Ryan, if true, are an unlawful fee-waiver offer which warrants setting aside the results of the election. Assuming, arguendo, that Ryan made the statements attributed to him by the employee witnesses, these employees further stated that Ryan unequivocally sought to clarify his statements by telling the witnesses that all employees who voted would have their initiation fees waived. Under such circumstances, the Union met its obligation to dispel any confusion because Ryan’s elucidation was timely, unambiguous, and specific. See Regency Electronics, Inc. v. NLRB, 523 F.2d 522, 525 (7th Cir.1975).

I agree with the majority that the Regional Director’s reliance on “the parties’ [agreement] to reschedule the election to June 26” was a clear error of fact because the Regional Director unilaterally rescheduled the election. The majority also acknowledges that the Regional Director has discretion to reschedule a cancelled election; however, it suggests that, under the circumstances of this case, doing so was “a dubious exercise of discretion.” Maj. op. at 552, n. 2.

Superior alleges that rescheduling the election deprived it of the right to campaign and that the rescheduling itself caused prejudice and destroyed the laboratory conditions necessary for conducting a fair election. The majority holds that Superior is entitled to a hearing on at least the latter of these issues. I respectfully disagree. Superior does not suggest that it objected to the rescheduling before the election was conducted, nor does it articulate specific reasons why the new date created prejudice or prevented it from campaigning. In fact, Superior demonstrated that it had adequate time to campaign by sending a letter to its employees on June 22, 1998, in which letter it addressed the delay.

Superior generally asserts that the rescheduling disenfranchised employees who were absent or on vacation, although it “presented no specific allegation that any employee was unaware of the rescheduled time and place of the election or that the election was rescheduled at such a time as to render it difficult or impossible for anyone to vote.” Alladin, 182 NLRB at 64, citing NLRB v. Conlon Bros. Mfg. Co., 187 F.2d 329 (7th Cir.1951). Significantly, sixty-one of sixty-nine employees in the unit managed to vote. Even if the eight employees who did not vote suffered hardship, that is not a sufficient reason to set aside an election. See NLRB v. Sonoma Vineyards, Inc., 727 F.2d 860, 864 (9th Cir.1984). Finally, I note that, even if all of the non-voting employees cast ballots against representation by the Union, the results of the election would still have favored Union representation. See Alladin, 182 NLRB at 64. In sum, I would hold that the objections raised by Superior do not raise substantial and material issues of fact as to the validity of the election. I would, therefore, hold that Superior was not entitled to an evidentiary hearing on its objections, and I would affirm the decision of the Board finding that certification of representation should issue.