Wald, Chief Judge, Ruth Bader Ginsburg and Williams, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the National Labor Relations Board.
This case arises from a certification election held at the C.J. Krehbiel Company, in which the Graphic Communications International Union, Local 508, O-K-I, AFL-CIO prevailed by a slim, two-vote margin. Following computation of the official tally, Krehbiel filed objections with the National Labor Relations Board Regional Director, claiming that a Union flyer had conveyed a false impression that the Board supported the Union, and asking the Board to set aside the outcome. Neither the Regional Director nor the Board on appeal accepted Krehbiel's view of the facts. The company now asks us to overturn the Board's determination. As we find that the Board did not abuse its discretion in overruling the petitioner's objections, we uphold its order requiring Krehbiel to recognize and bargain with the Union.
On April 18, 1985, the Union filed a petition with the Board, seeking a representation election among the production and maintenance workers at Krehbiel's Cincinnati factory. Subsequently Krehbiel and the Union filed a Stipulation to Certification Upon Consent Election and the Board scheduled a secret ballot election for June 20, 1985.
Because it provided an obvious benchmark by which the employees could judge the merits of the certification controversy, the status and viability of the Union at the nearby Neilsen Lithographing Company became a central matter of contention between Krehbiel and the Union in their efforts to sway the Krehbiel employees. During the election period, the Union led a strike at Neilsen and filed unfair labor practice charges, alleging that Neilsen had refused to bargain in good faith. A few weeks before the election, Frank Bailey, one of Krehbiel's foremen, raised the issue of the Neilsen strike at a weekly employee meeting, and asserted that the striking Nielsen pressroom workers had been replaced. Joint Appendix 69-70. On June 8 the Union responded by distributing a letter from a Neilsen striker stating that the Union had continued to support the strikers during their unemployment and explaining the Union's position on the strike. J.A. 79. On June 18 Krehbiel mailed its reply, reiterating Bailey's assertion that some of Neilsen's employees had been replaced during the strike and that some had abandoned the strike. J.A. 24. On the same day, the Union distributed a campaign flyer (the "first flyer," attached as Appendix A) containing a photocopy of the remedy section of the Administrative Law Judge's opinion in the Neilsen matter (requiring Neilsen to reinstate 26 former strikers), surrounded in the margins by various cartoons and partisan exhortations. While distributed in envelopes bearing the Union's name, the flyer was not, on its face, identified as a composite of the Board's edict and Union-made embellishments. On June 19, the Union distributed a second campaign flyer (the "second flyer," attached as Appendix B), printed on Union stationery and also covered with partisan cartoons and slogans. The second flyer told employees that the first one had been mailed to them by the Union and described it as "an actual copy of a recommended notice issued by a N.L.R.B. Administrative Law Judge."
On the following day the Union won the certification election by two votes. (The initial tally was 66-65, but the Board voided one ballot contested by the Union.) Krehbiel filed objections, alleging that in distributing the first flyer the Union had given employees the false impression that the NLRB supported the Union. The Regional Director of Region 9 of the NLRB issued a report recommending that Krehbiel's objections be overruled, and the Board, by a two-to-one majority, adopted the Regional Director's findings and recommendations and certified the Union as the employees' exclusive bargaining representative. C.J. Krehbiel Company, 279 NLRB No. 114 (1986) (Krehbiel).
In order to contest the Board's ruling, Krehbiel refused to bargain with the Union, prompting an unfair labor practice charge. The Board in turn issued a complaint alleging that Krehbiel had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5). Krehbiel, in its answer, admitted that it had refused to bargain with the Union, but asserted that the Union had not been properly certified as the employees' bargaining representative. On August 29, 1986, the Board granted a motion for summary judgment against Krehbiel, finding that the issues raised by Krehbiel "were or could have been litigated in a prior representation proceeding," and that Krehbiel had not tendered any "newly discovered and previously unavailable evidence" or alleged "any special circumstances that would require the Board to re-examine the decision made in the representation proceeding." J.A. 111. It then issued an order requiring Krehbiel to recognize and bargain with the Union. Krehbiel asks us to review and set aside the Board's order.
While this court has jurisdiction to review the Board's decision pursuant to §§ 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e) and (f), the Board is entrusted with a wide degree of discretion in conducting representation elections. Amalgamated Clothing Workers of America v. NLRB, 137 U.S. App. D.C. 330, 424 F.2d 818, 826-28 (D.C. Cir. 1970); Amalgamated Clothing & Textile Workers v. NLRB, 237 U.S. App. D.C. 194, 736 F.2d 1559, 1562 (D.C. Cir. 1984). The scope of our review of such decisions is narrow. To prevail before us, a party attempting to set aside a representation election must demonstrate that the conduct complained of interfered with the employees' exercise of free choice to such an extent that it materially affected the election. Id. at 1564. If we find that the Board's decision was supported by substantial evidence and conformed with Board precedent, we will defer to the Board. Id.
Krehbiel raises two related challenges to the Board's decision. First, it argues that the decision "depart[ed] from prior Board decisions without explanation." Petitioner's Brief at 30. Second, assuming arguendo that the Board did apply the correct legal test, Krehbiel asserts that the Board's determination is not supported by substantial evidence. *fn1
A. Conformity With Precedent
In General Shoe Corporation, 77 NLRB 124 (1948), the Board held that "laboratory conditions" must be maintained in labor election campaigns. Pursuant to this perhaps idealistic view of the certification process, see NLRB v. ARA Services, Inc., 717 F.2d 57, 66 (3d Cir. 1983) (en banc) ("given the nature of inter-employee relations, the Board cannot realistically be expected to create a totally frictionless election environment"); see also NLRB v. Mar Salle, Inc., 138 U.S. App. D.C. 135, 425 F.2d 566, 571 (D.C. Cir. 1970) (similar), the NLRB subsequently held that it would set aside any election in which the prevailing party reproduced and distributed "document[s] purporting to be a copy of the Board's official ballot, other than one completely unaltered in form and content and clearly marked sample on its face." Allied Electric Products, Inc., 109 NLRB 1270, 1272 (1954). Although the Board occasionally strayed from this approach, see, e.g., Associated Lerner Shops of America, 207 NLRB 348 (1973); Stedman Wholesale Distributors, 203 NLRB 302 (1973), it generally applied the per se rule, and expanded its scope to encompass misuse by a party of any official Board document. See, e.g., Rebmar, Inc., 173 NLRB 1434 (1968) (Board election notices); Mallory Capacitor Co., 161 NLRB 1510 (1966) (unfair labor practice complaints); GAF Corporation, 234 NLRB 1209 (1978) (the Board's letterhead).
In 1982, however, the Board made a decisive break from the theory underlying its prior cases, asserting in Midland National Life Insurance Co., 263 NLRB 127 (1982), that the voters were capable of evaluating the truthfulness of campaign materials. Riveredge Hospital, 264 NLRB 1094 (1982), followed on the heals of Midland, and extended Midland's holding to parties' misrepresentations of Board actions. Finally, in SDC Investment, Inc., 274 NLRB 556 (1985), the Board explicitly overruled the per se approach announced in Allied Electric Products in favor of a case-by-case approach focusing upon whether a party's use of ...