451 F.

2d 823
78 L.R.R.M. (BNA) 2808, 66 Lab.Cas. P 12,182

LIPMAN MOTORS, INC., Petitioner,

v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
and
Amalgamated Laundry Workers, Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, Intervenor.
Nos. 222-23, Dockets 35813, 71-1554.

United States Court of Appeals,

Second Circuit.
Argued Oct. 15, 1971.
Decided Nov. 4, 1971.

Jay S. Siegel, Hartford, Conn. (Siegel & O'Connor, Hartford, Conn., of

counsel), for petitioner.
Jack H. Weiner, Washington, D. C., Atty. (Peter G. Nash, Gen. Counsel,
Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Deputy
Asst. Gen. Counsel, on the brief), for the N.L.R.B.
Aaron J. Carr, New York City (Jacob Sheinkman, New York City, on the
brief), for Intervenor.
Before FRIENDLY, Chief Judge, CLARK, Associate Justice, * and
KAUFMAN, Circuit Judge.
KAUFMAN, Circuit Judge:

Lipman Motors, Inc., petitions this Court for review of an order of the National
Labor Relations Board requiring it to bargain with the Amalgamated Laundry
Workers. The Company argues that the Board's certification of the Union,
which underlies the determination that the Company violated Sections 8(a) (1)
and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 159, by refusing to
bargain, is invalid. The Union also petitions for review of the Board's order, on

the ground that the Board abused its discretion in denying the Union a "makewhole" remedy. Were it not for the Company's contention that the Board's
failure to consider the "whole" record vitiates the certification of the Union, this
would be a routine representation election case presenting questions of the
Board's discretion to regulate elections and the right to an administrative
hearing. The disposition, nevertheless, is clear-we reject the positions of both
the Company and the Union, deny their petitions and grant the Board's crosspetition for enforcement of its order.
2

Lipman Motors is a Hartford, Connecticut, automobile dealership. On February

26, 1970, the Board conducted a representation election in a unit comprised of
the Company's mechanics, bodymen and service department employees.1
Twenty-eight employees voted in favor of representation by the Union, nine
voted against representation and one ballot was challenged.

The Company promptly filed objections to the election on the grounds that the
Union had misrepresented to the employees that they would be eligible for a
pension if the Union were elected, even if the Company failed to agree; and that
the Union had conducted a poll prior to the election which unduly coerced the
employees.2 After conducting an ex parte investigation of the election, see 29
C.F.R. Sec. 102.69(c), the Acting Regional Director filed his report
recommending that the Board overrule the Company's objections. Thereupon,
the Company reiterated its position in exceptions to the report filed with the
Board. But the Board, finding that the exceptions "do not raise any substantial
issues of fact or law which would require overruling the Regional Director's
recommendations or the holding of a hearing," adopted his findings and
certified the Union as the statutory bargaining representative of the employees
without a hearing.

Seeking to obtain judicial review of the Board's certification,3 the Company

refused to bargain with the Union. A complaint issued charging the Company
with unfair labor practices in contravention of Section 8(a) (1) and (5), and the
Board, invoking its "rule against relitigation" in again refusing to grant a
hearing, entered summary judgment against the Company.

I.
5

The Company claims that the Board should have invalidated the election
because of Union misrepresentations, citing the well-established standard of
Hollywood Ceramics Company, 140 NLRB 221, 224 (1962).4 We disagree.
Hollywood Ceramics, recently approved by us in Bausch & Lomb, Inc. v. N. L.
R. B., 451 F.2d 873 (2 Cir. 1971), is an outgrowth of the Board's policy of

regulating pre-election campaigns to ensure that representation elections are

conducted under "laboratory conditions" and that employees exercise a free and
informed choice. See General Shoe Corporation, 77 NLRB 124 (1948). The
Company, from the time of its initial objections to the election, consistently has
maintained that the Union misled the employees into believing that they would
be eligible for the Union's standard pension plan without the Company's
agreement if the Union were elected. Although the Regional Director found on
the basis of conflicting evidence that there was no such misrepresentation, he
also found, and the Company admits, 5 that management was aware of the
Union statements a full week before the election. In the circumstances of this
dispute, this finding is decisive of the Company's claim.
6

One of the important elements of the Hollywood Ceramics test is that the
misrepresentation occur "at a time which prevents the other party or parties
from making an effective reply." That one week was sufficient time for the
Company to merely inform the employees that any benefits promised by the
Union were indeed contingent upon the Company's agreement during collective
bargaining seems to us to be self-evident.6

Accordingly, we need not tarry over whether the Acting Regional Director's
finding, later adopted by the Board, that there was no misrepresentation is
supported by substantial evidence or, if there was a misrepresentation, whether
it would come within the Hollywood Ceramics' test of materiality. See Bausch
& Lomb, supra, at 146-150.

II.
8

The Company's second challenge to the certification is grounded on events at a

Union meeting held on February 24, two nights before the election. These
events are best described by the findings of the Acting Regional Director:

*9 * * Near the end of the meeting, and prior to Union Agent Harold Biging's calling
for nominations for an observor at the Board election, Biging asked if anyone
wanted to say anything, express an opinion, or speak for the Company or the Union.
There was no reply. He then asked, "Is there anyone now who feels he can't vote for
the Union? If there is let him speak up." There was a slight pause and someone in
the group shouted "* * * Let's see who's for it." At that point just about everyone
present raised his hand, and there were a few shouts of enthusiasm. There was no
count taken, no tally was drawn and no ballots were used. It is clear that the show of
hands was in response to the "* * * Let's see who's for it" stimulus from the floor.
10

The Company argues that this "poll" requires us to set aside the election, citing

Offner Electronics, Inc., 127 NLRB 991, 992 (1960). In Offner the Board set
aside an election where the employer had conducted a secret-ballot straw poll
prior to the election. The opinion included the following broad language:
*11* * after the Board directs a representation election, or the parties agree to a
Board-conducted election, the responsibility to conduct a secret ballot election for
the resolution of the question concerning representation rests solely with the Board,
and any secret balloting or polling of the employees on the representation issue by
the parties, or by others on a party's behalf * * * may be used by an innocent party as
a basis for setting aside the Board election.
12

We do not agree that Offner is apposite to this case, but in concluding as we do,
we neither approve nor disapprove the Board's current position that the
rationale of Offner applies only to employer-conducted polls.7

13

The spontaneous show of hands "in response to the '* * * Let's see who's for it'
stimulus from the floor," a bit reminiscent of the college rally on the eve of the
big game, is hardly conduct which "rendered employee free choice impossible."
See Offner Electronics at 992. The employees here were not confronted with
the pressure of a formal straw poll, conducted by the Union representative, with
the ayes and nays carefully recorded. We cannot say that the Board abused its
discretion in determining that the Union meeting did not interfere with
"laboratory conditions."8

III.
14

Our conclusion, of course, is based upon the assumption that the Acting
Regional Director's description of the events in question is factually correct.
Normally we would inquire whether his findings, adopted by the Board, were
supported by substantial evidence. But, when none of the parties raises a
substantial and material factual issue in its objections to the Regional Director's
report, the Board, without a hearing may adopt those findings, and those
findings are then conclusive on the reviewing court. See 29 U.S.C. Sec. 160(e);
29 C.F.R. Sec. 102.62(e).9

15

The Company claims, however, that there were substantial and material factual
issues which entitled it to a hearing, either before the Board certified the Union
or before it entered its unfair labor practice order in summary fashion. In its
exceptions to the Acting Regional Director's Report, the Company alleged that
both employer and employee affidavits submitted to the Acting Regional
Director established that the Union had misrepresented the conditions relating
to pension plan coverage. The Company also alleged that the Union solicited

the showing of hands and compelled "the employees present to publicly divulge
what their vote would be. * * *"
16

A hearing is not required, however, "unless by prima facie evidence the moving
party presents substantial and material factual issues which, if resolved in its
favor, would warrant setting aside the election. * * *" Polymers, Inc. v. N. L.
R. B., 414 F.2d 999 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570,
24 L.Ed.2d 502 (1970). Conclusory allegations questioning the ultimate
findings of the regional director are not sufficient. See also N. L. R. B. v.
Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S.
958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).

17

The Company's claim for a hearing on the misrepresentation issue is clearly

illfounded. This is an instance where the alleged factual dispute, centering as it
does on what was said and not on when it was said or when the Company
learned of the statements, would not warrant setting the election aside even if
the dispute were resolved in the Company's favor. As we have set forth in our
earlier discussion, timing, which here works against the Company, is an
essential element of the Hollywood Ceramics test.

18

Nor is the Company entitled to a hearing on the polling issue. Its bald assertion
that the Union conducted the poll is not supported by any specific factual
allegations controverting the Acting Regional Director's findings which would
lead us to believe the show of hands was not spontaneous. For example, the
Company does not charge that the Union, according to a preconceived design,
had planted the employee who yelled "Let's see who's for it."

19

Finally, there is no merit to the Company's claim that the Board's "rule against
relitigation" deprived it of due process. In an unfair labor practice proceeding
based upon a refusal to bargain, the Board is required to reopen the question of
certification only when the party requesting the hearing presents newly
discovered evidence. See, e. g., Polymers, Inc., supra, at 1005; Tennessee
Packers, Inc., supra, at 179-180. This rule, which is essential to the orderly
settlement of labor disputes and the prevention of costly procedural delays, is
not dependent upon a prior hearing, but only on the prior opportunity to present
any evidence which might require a hearing.

IV.
20

The Company argues vociferously that the record before the Board and this
court is incomplete. The Acting Regional Director in his report relied on

several employees' affidavits. These affidavits were not before the Board when
it reviewed the report. Accordingly, the Company argues, the Board could not
have reviewed the "entire record" as it claimed, and the certification must be
vacated. We do not share the Company's views.
21

Section 102.69(f) of the Board's Rules and Regulations, 29 C.F.R. Sec.

102.69(f) provides:

22 notice of hearing, motions, rulings, orders, stenographic report of the hearing,

The
stipulations, exceptions, documentary evidence, all of which, together with the
objections to the conduct of the election or conduct affecting the results of the
election, any report on such objections, any report on challenged ballots, exceptions
to any such report, any briefs or other documents submitted by the parties, the
decision of the regional director, if any, and the record previously made as described
in Sec. 102.68, shall constitute the record in the case. Immediately upon issuance of
a report on objections or challenges, or both, upon issuance by the regional director
of an order transferring the case to the Board, or upon issuance of an order granting
a request for review by the Board, the regional director shall transmit the record to
the Board.
23

Although the Board has stated that a rather similar definition of the record in
Sec. 102.68 does not include affidavits such as those in issue here, LTV
Electrosystems, Inc., 166 NLRB 938 n. 2 (1967), enforced, 388 F.2d 683 (4th
Cir. 1968), we are not required to consider this interpretation or resolve the
procedural question the Company raises. What is decisive here is that the
Company's exceptions, even viewed in the light most favorable to it, do not
warrant setting aside the election.10

V.
24

We are left only with the Union's claim that the Board abused its discretion in
denying a "make-whole" remedy. When the Union moved for summary
judgment upon the complaint charging the Company with unfair labor
practices, it requested that the Board in addition to the traditional bargaining
order (1) grant the employees compensatory damages for the monetary losses
suffered as a result of the Company's refusal to bargain and (2) require the
employees to be assembled to hear an explanation by the General Counsel of
the Board and the Union concerning the Company's violations. The Board
denied this request and issued its traditional order requiring the Company to
cease and desist from the unfair labor practices, to bargain with the Union upon
request and to post appropriate notices.

25

It is now axiomatic that the Board has broad discretion in fashioning an

affirmative remedy under Section 10(c) to "effectuate the policies of the Act."
See, e. g., N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct.
1918, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. N. L. R. B.,
379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Recently this Court
upheld the Board's refusal to grant monetary damages, noting that "[t]he award
of monetary relief for an employer's failure to bargain is an unusual remedy
which has been used very sparingly by the Board." Herald Company v. N. L. R.
B., 444 F.2d 430, 436-437 (2d Cir. 1971). The Company pursued the only
procedural course available to secure judicial review of the Board certification.
This commonplace attack on the Board's decision certainly does not warrant a
direction by us to the Board to undertake the speculative adventure of fixing
damages by "determining" whether the parties would have reached an
agreement if they had bargained in good faith and what the terms of that
hypothetical agreement would have been.11

26

The Union in its brief has not asked the Court to require the Board to amend its
order to provide for the requested meeting of employees. But we note that in
the past this relief also has been limited to undoing the effect of egregious
unfair labor practices. See, e. g., J. P. Stevens & Co. v. N. L. R. B., 380 F.2d
292, 305 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600
(1967). Here too, the Board did not exceed its broad discretion in denying the
Union's request.

27

Petitions for review denied; order enforced.

United States Supreme Court, retired, sitting by designation

The Company and the Union, with the approval of the Acting Regional
Director, entered into a "Stipulation for Certification Upon Consent Election."
This stipulation waives all objections to the holding of the election or the
composition of the bargaining unit, but does not affect the Board's post election
procedures. See 29 C.F.R. Sec. 102.62(b)

Although in form the Company listed three objections, the last objection was
merely a conclusory statement based upon factual allegations in the first two

The only procedure to obtain judicial review of a Board order certifying a

statutory bargaining representative is to invite an unfair labor practice charge
by refusing to bargain. The certification and the record of the Regional
Director's investigation are included in the transcript of the entire record

reviewed by the court which reviews the unfair labor practice order. See 29
U.S.C. Secs. 160(e), 159(d)
4

"We believe that an election should be set aside only where there has been a
misrepresentation or other similar campaign trickery, which involves a
substantial departure from the truth, at a time which prevents the other party
from making an effective reply, so that the misrepresentation, whether
deliberate or not, may reasonably be expected to have a significant impact on
the election. (Footnote omitted.)"

Harvey Lipman, the Company Vice President, admitted in an affidavit filed

with the Acting Regional Director that an employee had informed him of the
Union statements approximately one week before the election

The Company argues in its brief that there was insufficient time to reply
because "[t]he pension plan involved the Laundry Workers Union and existed,
if at all, in an industry totally unrelated to that of the Employer here." But it was
not necessary for the Company to confirm all the details of the Union's plan
before it replied
The Company also argues that the alleged misstatements were repeated at a
Union meeting just two days prior to the election. Even if two days were not
sufficient time to reply to this latter statement, our conclusion that the Company
could and should have replied to the prior Union statements would not be
affected. We note, moreover, that the Company, which had ready access to the
thirty-eight employees at a moment's notice and did not have to do any research
to refute the alleged position of the Union, easily could have replied within the
intervening forty-eight hours. Compare Bausch & Lomb, supra, at 876.

Because the union ordinarily does not have the power of the sword or purse,
there is some merit to the Board's argument that a union poll may not be as
coercive as an employer poll. But it does not necessarily follow that the Board
should tolerate any deliberate coercion

Assuming the existence of substantial evidence to support the Board's factual

determinations, abuse of discretion is the proper standard for reviewing a Board
decision to validate or set aside an election. See, e. g., Bausch & Lomb, supra,
at 877 n. 6; Follett Corp. v. N.L.R.B., 397 F.2d 91, 94-95 (7th Cir. 1968)

Section 102.69(e) of the Board's Rules and Regulations, 29 C.F.R. Sec.

102.69(e), in relevant part provides:
* * * if exceptions are filed, either to the report on challenged ballots or
objections, or both if it be a consolidated report, and it appears to the Board that

such exceptions do not raise substantial and material issues with respect to the
conduct or results of the election, the Board may decide the matter forthwith
upon the record. * * *
Section 10(e) of the Act, 29 U.S.C. Sec. 160(e), in relevant part provides:
No objection that has not been urged before the Board * * * shall be considered
by the court, * * *. The findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as a whole shall be
conclusive.
Whether one characterizes the Company's conclusory allegations as "no
objection" or as raising no material factual issues, the findings adopted by the
Board are conclusive.
10

We note that if the Company had been afforded a hearing, Section 102.118(b)
of the Board's Rules and Regulations requires the written statements of
witnesses in a postelection hearing to be produced for the purpose of crossexamination. 29 C.F.R. Sec. 102.118(b). See also N.L.R.B. v. Golden Age
Beverage Co., 415 F.2d 26, 34 (5th Cir. 1969)

11

It is by no means clear, and we do not decide whether or not the Board has the
power to grant compensatory damages for refusal to bargain