709 F2d 1342 National Labor Relations Board v. Yellow Transportation Company a Division of Yellow Cab Cooperative Inc

709 F.2d 1342

114 L.R.R.M. (BNA) 2466, 98 Lab.Cas. P 10,287

COOPERATIVE, INC., Respondent.

No. 82-7021.

United States Court of Appeals,
Ninth Circuit.

Submitted March 23, 1983.1
Decided July 8, 1983.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Assoc. Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D.C., for petitioner.

James J. Meyers, Jr., Berman, Cassel & Carter, San Francisco, Cal., for respondent.

Petition for Enforcement of an Order of the National Labor Relations Board.

Before GOODWIN, KENNEDY and ALARCON, Circuit Judges.


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The National Labor Relations Board petitions for enforcement of its order to the Yellow Transportation Company (Yellow Cab) to bargain in good faith with the Independent Cab Drivers Association (the Drivers). The National Labor Relations Board certified an election in which Yellow Cab drivers voted to make the Drivers their collective bargaining representative.


Yellow Cab contends that the Drivers made misrepresentations in printed leaflets circulated during the campaign. Yellow Cab countered Drivers' leaflets with its own leaflets and posted notices. The National Labor Relations Board did not hold a full scale evidentiary hearing concerning the misrepresentations because it concluded that under the law governing elections, Yellow Cab had not made out even a prima facie case of misrepresentations that would require setting aside the election.


The National Labor Relations Board's findings of fact must be upheld if they are supported by "substantial evidence" and its legal conclusions affirmed unless they are "arbitrary and capricious." N.L.R.B. v. International Ass'n of Bridge, Etc., 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977). An evidentiary hearing regarding electoral conduct is required only where the party objecting to the election presents "evidence sufficient to make a prima facie showing as to the alleged facts, which if true, would require a new election." Alson Mfg. Aero. Div. of Alson Indus., Inc. v. N.L.R.B., 523 F.2d 470, 472 (9th Cir.1975).


At the time Yellow Cab objected to the election, the law governing the case was stated in Hollywood Ceramics Company, Inc., 140 N.L.R.B. 221 (1962). Under that rule an election would be set aside for misrepresentation only where a party's misrepresentation involved a substantial departure from the truth and was made at a time when the other party could not make an effective reply. Id. at 224. Yellow Cab, by its own admission, had plenty of time to reply to the Drivers' alleged misrepresentations, and Yellow Cab in fact did so. The test is not whether Yellow Cab's reply was effective. It is whether Yellow Cab had time to reply. The National Labor Relations Board adopted its Acting Regional Director's recommendation, and found that Yellow Cab had failed to present evidence which could require a new election. This finding was supported by substantial evidence.


After the National Labor Relations Board's certification of the Drivers, the Board has adopted an even more stringent test for setting aside elections. Midland Nat'l Life Ins. Co., 263 N.L.R.B. No. 24, 110 LRRM 1489 (1982) reasserted the standard set forth in Shopping Kart Food Market, 228 N.L.R.B. 1311 (1977). Elections will be set aside only for misrepresentation if a party has used forged documents or altered National Labor Relations Board documents during its campaign. The National Labor Relations Board will not look into the truth or falsity of campaign statements. No forged documents were used by either Yellow Cab or the Drivers in this case. The election may not be set aside on the facts alleged by Yellow Cab.


The National Labor Relations Board does not cite the cases it relied on in certifying the Drivers and in its order. But under the standard then in force, the Hollywood Ceramics test, its judgment was correct. Even if it were not correct, to remand for an evidentiary hearing on the facts alleged by Yellow Cab could only result in another certification of the election. Under the current standard as stated in Midland, the National Labor Relations Board would be obliged to certify the election. In Midland, the Board stated that "we shall apply our new policy not only 'to the case in which the issue arises' but also 'to all pending cases in whatever stage.' " 110 LRRM at 1494 n. 24. To remand for an evidentiary hearing would be futile. It is not required by law because the alleged facts could not require a new election. Alson, 523 F.2d at 472.


The National Labor Relations Board's order is enforced.

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The panel agrees that this case may be decided without oral argument. Fed.R.App.P. 34(a)