789 F.

2d 188
122 L.R.R.M. (BNA) 2193, 104 Lab.Cas. P 11,837

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
RHONE-POULENC, INC., Respondent.
No. 85-3351.

United States Court of Appeals,

Third Circuit.
Argued March 3, 1986.
Decided April 24, 1986.

DeMaria, Ellis & Hunt, Newark, N.J., for respondent; Ronald H.

DeMaria, (argued), Peter Petrou, Guy A. Peluso, Jonathan S. Reed, on
brief.
Kenneth B. Hipp (argued), Deputy Asst. Gen. Counsel, N.L.R.B.,
Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen.
Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy
Associate Gen. Counsel, Washington, D.C., for petitioner.
Before GIBBONS, BECKER, and ROSENN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge:

I.

The National Labor Relations Board petitions for enforcement of its order
directing Rhone-Poulenc, Inc., the employer, to bargain with the Oil, Chemical,
and Atomic Workers International Union, AFL-CIO, Local 8-948, the union.
The employer concedes that it refused to bargain with the union after the Board
certified it as the employees' bargaining representative. It contends, however,
that the Board should not have certified the union in light of irregularities in the
Board-supervised election. We reject this contention and enforce the Board's
order.

On December 21, 1983 the employees at the employer's Lakewood, New

Jersey plant participated in an election pursuant to a stipulated election
agreement. Of forty-five ballots cast, twenty-four favored the union, and
twenty opposed it; one challenged ballot was discounted. Within the five-day
period specified by 29 C.F.R. Sec. 102.69(a) (1985) the employer filed with the
Regional Director a letter setting forth three objections to union conduct that
allegedly affected the outcome of the election. The Regional Director advised
the employer that within five days of the filing of the objections it had to
furnish any supporting evidence it had available to it at that time. The employer
subsequently submitted four employee affidavits that not only bore on the
original objections but that also included new allegations about union threats
and promises.

The Regional Director submitted a report to the Board recommending that it

reject the three timely objections and certify the union as the bargaining
representative. He refused to investigate the allegations first raised in the
affidavits because the employer had not presented them within five days of the
election. The employer then filed a timely exception to the Regional Director's
report, challenging his disposition of two of the three timely objections as well
as his refusal to investigate the additional allegations. A divided three-member
panel of the Board adopted the Regional Director's report and recommendation
and certified the union.

In order to obtain judicial review the employer refused to bargain.1 The General
Counsel filed an unfair labor practice charge, and the Board, with one member
dissenting, granted his motion for summary judgment. See Rhone-Poulenc,
Inc., 274 NLRB No. 129, 118 L.R.R.M. (BNA) 1494, 1494 (1985).

II.
5

We first consider the employer's exception to the Regional Director's rejection

of two of its timely objections. The employer objected first that representatives
of the union "knowingly misrepresented to the eligible voters within the unit
that the 'bylaws' of the National Labor Relations Board prohibit an employer
from reducing any existing wage and benefits once a union wins the right to
represent employees." Joint Appendix at 1. It also objected that the union, via
two letters, misled the eligible voters into thinking that the Board was not
absolutely neutral in the election. In the first letter Henry Santos, the president
of the union, wrote, "Eveything [sic] I have stated here can be verified through
Dawn Miller, she is the representative assigned to this election. She works for
the Labor Board in Philadelphia." Joint Appendix at 4. And in the second letter
he stated,

I spoke to Ms. Dawn Miller of the National Labor Board and told her of the
company's threat of loss of benefits, she admits it is against the law and advises
me to file a charge against the company with the N.L.R.B. I will discuss this
with all of you on the 17th.

Joint Appendix at 5.

Treating the two objections as presenting the single issue of whether a

misrepresentation by an election participant invalidates an election outcome
and assuming that Mr. Santos's statements reached the eligible voters, the
Regional Director ruled that the misrepresentations did not justify setting aside
the election. In so ruling the Regional Director applied the rule, announced in
Midland National Life Insurance Co., 263 N.L.R.B. 127, 131 (1982), that the
Board would not probe the truth or falsity of campaign statements recognizable
as originating with one of the partisans in an election.

The employer contends that the Midland rule should not apply in cases
involving partisan misrepresentations about Board actions or positions. In so
contending it asks us to ignore established Board policy. In Affiliated Midwest
Hospital, Inc. d/b/a Riveredge Hospital, 264 N.L.R.B. 1094 (1982), the Board,
overruling its holding in Formco, Inc., 233 N.L.R.B. 61 (1977), held that, for
purposes of assessing the validity of election results, it would treat partisan
misrepresentations concerning Board actions or positions no differently than it
treats other misrepresentations. See 264 N.L.R.B. at 1094-95; see also SDC
Investment, Inc., 274 NLRB No. 78, 118 L.R.R.M. (BNA) 1410, 1411-12
(1985). Thus, while the introduction to eligible voters of forged or altered
Board documents may still result in the setting aside of an election because the
partisan nature of such misrepresentations is not evident, partisan
misrepresentations recognizable as such will not. See The Coca Cola/Dr.
Pepper Bottling Company of Memphis, 273 N.L.R.B. No. 68, 118 L.R.R.M.
(BNA) 1225, 1226 (1984) (rejecting objection that union official's oral
misrepresentation invalidated election); Metropolitan Life Insurance Co., 266
N.L.R.B. 507, 507-08 (1983) (rejecting objection that employer's oral
misrepresentation invalidated election); County Line Cheese Co., 265 N.L.R.B.
1519, 1519 (1982) (rejecting objection that employer's written
misrepresentation invalidated election).

10

In light of the fact that the Midland rule clearly applies in the circumstances of
this case, we can set aside the Board certification here only if we conclude that
the Midland rule runs afoul either of section 9(c) of the National Labor
Relations Act, 29 U.S.C. Sec. 159(c) (1982), or of the Board's own election
rules. See NLRB v. ARA Services, Inc., 717 F.2d 57, 63-68 (3d Cir.1983) (en

banc) (plurality opinion). We conclude that it does neither. Indeed the Board's
adoption of the Midland rule--a move that marks a return to the position
initially taken by the Board in Shopping Kart Food Market, Inc., 228 N.L.R.B.
1311, 1313 (1977), and a move based on the Board's appraisal of the likely
effects of partisan misrepresentations on employee free choice--is consistent
with both the statute and the rules governing elections and is entitled to our
deference.
III.
11

We turn next to the employer's exception to the Regional Director's decision not
to investigate the allegations the employer made after it filed its original
objections. In its response to the Board's request for evidence supporting its
three timely objections, the employer submitted, without comment or
explanation, hearsay evidence alleging that one employee had made a
threatening statement to other employees about the consequences of a union
defeat and alleging further that another employee had been promised a
promotion to shop steward if the union were to prevail. That evidence was
entirely unrelated to the timely objections. Relying on Burns International
Security Services, Inc., 256 N.L.R.B. 959 (1981), which stands for the
proposition that an employer may not expand timely-filed objections by
furnishing evidence of unrelated objections unless it establishes that the
evidence is newly-discovered and was previously unavailable, see id. at 959-60,
the Regional Director refused to investigate these allegations because the
evidence neither was newly-discovered nor had it been previously unavailable
to the employer.

12

The employer does not contest the applicability of the Burns rule to the facts of
this case. Rather, it asserts that this court's decision in N.L.R.B. v. Campbell
Products Department, 623 F.2d 876 (3d Cir.1980), precludes adherence to the
Burns rule. In Campbell Products we held that a Regional Director who had
refused to investigate untimely objections to an election abused his discretion
because he acted inconsistently with the policy announced by the Board in
American Safety Equipment Corp., 234 N.L.R.B. 501 (1978). See 623 F.2d at
880-82. In American Safety Equipment the Board held that a Regional Director
should set aside an election if he or she receives or discovers evidence during
an investigation that shows that the election has been tainted in a manner
different from that suggested by a timely objection. See 234 N.L.R.B. at 501.
This court noted in Campbell Products, however, that the Board was free to
change the American Safety Equipment rule and to insist instead on strict
compliance with its rule on the time for the filing of objections: "Having
adopted the policy reaffirmed in American Safety Equipment, the Board retains

the discretion to change its mind expressly and substitute a strict compliance
policy." 623 F.2d at 882 n. 4.
13

In Burns the Board did exactly what we said in Campbell Products it was free
to do. It limited its holding in American Safety Equipment, explaining that
while the Regional Directors would have discretion to determine the scope of
an investigation, they could consider new objections only if those objections
were based on evidence that was newly-discovered and had been previously
unavailable.2

14

The rules with respect to the filing of objections to election conduct, including
those dealing with the time of filing of objections and the method of
investigating them, are all Board-made rules. In Campbell Products we
acknowledged that the Board had discretion to interpret those rules as requiring
strict compliance. Obviously the court had to acknowledge the Board's
authority in that respect, for section 9 of the National Labor Relations Act
confers on the Board, not on the courts, the responsibility for supervising the
choice of bargaining representatives. Chas. S. Winner v. Teamsters Local
Union No. 115, 777 F.2d 861, 863-64 (3d Cir.1985). The Board has exercised
that authority, and the Burns rule is entirely consistent with the Board's
responsibility to resolve promptly disputes over employee selection of
bargaining representatives. The employer's exception to the Regional Director's
adherence to Burns is without merit.

IV.
15

The Board did not err in holding that the two timely objections were
insufficient to warrant setting aside the election. Nor did the Board err in
declining to consider untimely objections that were based on evidence that
neither was newly-discovered nor had been previously unavailable to the
employer. The Board's order will, therefore, be enforced.

16

ROSENN, Circuit Judge, concurring and dissenting.

17

I disagree with the majority's reading of Burns International Security Services,

Inc., 256 N.L.R.B. 959 (1981), as announcing a new policy of strict compliance
with the Board's five-day rule for the filing of objections. In my opinion, the
Regional Director was required by the Board's past precedents to consider the
allegations Rhone-Poulenc tendered after the initial five-day period but before
he began his investigation. I am therefore compelled to dissent from parts III
and IV of the majority's opinion. I join, however, in parts I and II.

I.
18

The NLRB has a longstanding policy, recognized in American Safety

Equipment Corp., 234 N.L.R.B. 501 (1978), enf. denied on other grounds, 643
F.2d 693 (10th Cir.1981), that no matter what scope a Regional Director gives
his investigation,

19he receives or discovers evidence during his investigation that shows that the
if
election has been tainted, he has no discretion to ignore such evidence and it is
reversible error if he fails to set aside the election.... Were we to close our eyes to
objectionable conduct merely because a party has failed to frame its objections
properly to include such conduct, we would make a mockery of our pledge to
preserve employee rights to a fair election.
20

234 N.L.R.B. at 501-502.

21

This court in NLRB v. Campbell Products Department, 623 F.2d 876 (3d
Cir.1980), held that under the Board's settled policy, as reflected in American
Safety, a Regional Director must investigate evidence of objectionable conduct
brought to its attention after the initial five-day period for objections had
passed. The court recognized "that the Board plainly has the power to compel
strict compliance with its five day objection rule," id. at 880 (emphasis in
original), but held that the Board was bound by its adopted policy until it
"change[s] its mind expressly and substitute[s] a strict compliance policy." Id.
at 882 n. 4.

22

Within the five-day period following initial objections provided for by Board
practice and regulations, Rhone-Poulenc submitted evidence, in the form of
affidavits, to support its initial objections to the union's campaign propaganda.
See 29 C.F.R. Sec. 102.69(a) (1985). Two of these affidavits, sworn to by a
supervisor and an employee, also reported threats of violence by union
supporters that if confirmed might require the election be set aside. Although
he had not yet commenced his investigation, the Regional Director declined to
consider the evidence of threats tendered in these affidavits, despite his
obligation under American Safety to investigate all evidence of objectionable
behavior that he receives. He relied on Burns and two other cases in holding
that the evidence of threats constituted an untimely objection which he was not
bound to consider.1 The Board in affirming his decision cited no authority and
summarily concluded, "we are not persuaded by the facts of this case that any
special circumstance exists that would justify permitting the Employer to file
untimely objections."

23

In a well-reasoned dissent, Board Member Hunter discussed the authority relied

on by the Regional Director, including Burns, and found it all distinguishable.
Despite the assertion of the majority of this panel that "[t]he employer does not
contest the applicability of the Burns rule to the facts of this case," RhonePoulenc argues at length in its brief, as Member Hunter did in his dissent, that
"Burns is clearly inapplicable" to the present case. I agree.

II.
24

This court in Campbell Products imposed no unusual requirement on the Board

by requiring it to obey its past precedents unless it expressly rejects them. 623
F.2d at 882 n. 4. As we previously stated, all administrative agencies "have an
obligation to render consistent opinions and either follow, distinguish, or
overrule their own precedent." Chisholm v. Defense Logistics Agency, 656
F.2d 42, 47 (3d Cir.1981). The Board, as an administrative agency, may
overrule its prior precedents, "so long as the Board's new position is fully
reasoned and explained, and ... the position does not exceed the bounds of the
Act." Latrobe Steel Co. v. NLRB, 630 F.2d 171, 177 (3d Cir.1980), cert.
denied, 454 U.S. 821, 102 S.Ct. 104, 70 L.Ed.2d 92 (1981). This requirement
that the Board, as an administrative agency, expressly state its reasoning and
intent to change its established policies, is fully consistent with the Supreme
Court's decisions.2

25

As the Court recently stated, "an agency changing its course by rescinding a
rule is obligated to supply a reasoned analysis beyond that which may be
required when an agency does not act in the first instance." Motor Vehicle
Manufacturer's Association v. State Farm Mutual Auto Ins. Co., 463 U.S. 29,
42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In addition to the need of the
public to be informed of a change in policy, effective judicial review requires
that an administrative agency changing settled procedures explicate the change
in a way that allows a reviewing court to discern the policy served by the new
procedure. Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of
Trade, 412 U.S. 800, 805-06, 93 S.Ct. 2367, 2373-74, 37 L.Ed.2d 350 (1973)
(Marshall, J.) (plurality opinion). An agency's factual distinction between past
and present cases without an explanation of the underlying policy served by
their different treatments may give the reviewing court too little guidance in
evaluating the propriety of a newly altered rule. See id. at 807-08, 93 S.Ct. at
2374-75.

26

The Board's decision to depart from prior norms in carrying out the policies
committed to it by Congress should as a rule be entitled to deference by the
courts. A reviewing court, however, cannot determine whether the new course

pursued by the Board adopts a policy "consistent with its mandate from
Congress," id. at 806, 93 S.Ct. at 2374, unless it expressly articulates its reasons
for the change. A change in policy announced by the Board will be respected if
"the Board has reached a fair and reasoned balance upon a question within its
special competence,... and the Board has adequately explicated the basis of its
interpretation." NLRB v. Weingarten, Inc., 420 U.S. 251, 267, 95 S.Ct. 959,
968, 43 L.Ed.2d 171 (1975). My concern is whether the Board has met this
burden in Burns and announced a new policy of strict compliance with its fiveday rule.
III.
27

In Burns, the Board held that a Regional Director had erred in reading
American Safety as requiring him to consider an employer's "Supplementary
Objections" filed 47 and 77 days after an election and during his investigation.
Although noting that "[t]he line between evidence discovered during the
investigation and new, untimely objections will not always be glaringly clear,"
the Board held that parties should not be allowed to file new objections during
a Regional Director's investigation. 256 N.L.R.B. at 959.

28
Entertainment
of a whole new set of objections ... would vitiate our requirement that
parties file timely objections. Being inundated with successive sets of objections, the
Regional Director, if he had to investigate each new allegation, could be prevented
from or unduly delayed in concluding his investigation.
29

Id. The Board held that new and untimely objections presented during a
Regional Director's investigation normally should be considered only if the
presenting party gives clear and convincing proof that they were newly
discovered and previously unavailable. Id. at 960. The Board gave two reasons
for this rule: to "discourage ... the piecemeal submission of evidence," id; and to
prevent "the potential mischief inherent in permitting an objecting party to take
control over the investigation away from the Regional Director." Id. at 959.

30

I do not think that Burns can fairly be read as announcing a new Board policy
that henceforth no evidence of objectionable behavior would be considered
after the initial five-day period for filing objections, even if the Regional
Director had not and could not have begun an investigation of the timely filed
objections. By my reading, all the Burns decision established is that an
objecting party may not file supplemental objections during a Regional
Director's investigation without a convincing showing that the objections could
not have been made previously. The Board stated that some limitation of
American Safety was necessary to prevent objecting parties from wrongly

delaying the resolution of election disputes and interfering with the Regional
Director's investigation with a flurry of untimely objections. The Board did not
purport, as the majority contends, to announce a new policy of strict
enforcement of the five-day rule.
31

The circumstances of Burns are distinguishable from those of the present case
on two crucial grounds: (1) Rhone-Poulenc submitted the affidavits supporting
further objections during the period the Board specifically provides objecting
parties for the submission of supporting evidence, and before the Regional
Director had begun any investigation. (2) Rhone-Poulenc's allegation of
unlawful threats came in the form of evidence, not conclusory or
unsubstantiated objections.

32

It is difficult to see how Rhone-Poulenc's action implicates the Board's concern

in Burns that late objections would cause delay and interfere with the Regional
Director's control over an investigation. Rhone-Poulenc submitted its affidavits
"[w]ithin 5 days after the filing of objections," the period provided by Board
regulations for an objecting party to "furnish to the regional director the
evidence available to it to support the objections." 29 C.F.R. Sec. 102.69(a)
(1985). The Board's longstanding regulatory scheme clearly expects an
objecting party to continue its own investigation during this five-day period,
with a Regional Director's investigation to follow only if the objecting party's
submission of evidence is sufficient to support prima facie the setting aside of
the election. The majority's concern that Rhone-Poulenc's affidavits may have
been the result of its continued investigation is misplaced. It was RhonePoulenc's obligation to investigate the election during this five day-period, and
it was the Regional Director's obligation to pursue Rhone-Poulenc's evidence of
objectionable conduct with its own investigation subsequent to the five-day
period. Rhone-Poulenc's timely submission of evidence, whether unsolicited or
obtained through its investigation, did not and could not interfere with any
investigation the Regional Director might subsequently make.

33

Further, it is incongruous and inconsistent with the policy concerns of

American Safety for the Regional Director to read and consider that portion of
Rhone-Poulenc's affidavits that support the timely objections to campaign
propaganda but ignore the rest. Under American Safety, which the Board has
not repudiated, a Regional Director may limit the scope of its investigation but
must consider evidence of election taint brought to its attention during its
investigation. By ignoring the evidence of possibly unlawful threats brought to
his attention before he commenced any investigation, the Regional Director
here utterly abdicated the "Board's obligation to provide voters with the
'laboratory conditions' under which they may exercise their franchise in a free

and informal manner," 234 N.L.R.B. at 501, even though it meant no delay in
the proceedings or challenge to the Director's control over the investigation. I
cannot believe that the Board would have intended such an anomalous and
stultifying result without a thorough explication of its change in policy in
response to judicial mandate.
IV.
34

I would therefore grant Rhone-Poulenc's petition for review in part and remand
the case to the Board for investigation of the threats reported in RhonePoulenc's affidavits.

See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 591 n. 2 (3d Cir.1975)

The Board reasoned,

The scheme of our objections procedure allows the losing party five working
days after the results are tallied in which to discover the possibility of serious
misconduct which might warrant setting the election aside and to file
objections. The objecting party is given a further, limited period of time in
which to complete its private investigation of that alleged misconduct and
promptly turn the results over to the Regional Director, who then investigates
and takes appropriate action as expeditiously as thoroughness allows. The
Regional Director's investigation is neither to be perfunctory nor, ordinarily,
protracted. If material facts are in dispute the administrative investigation is
suspended and the dispute is resolved through a hearing. But the scope of the
investigation, as we made clear in American Safety, is within the informed
discretion of the Regional Director. The investigation is in his or her hands; the
period during which the investigation proceeds was never intended to provide
more time for the objecting party to extend its own investigation in the hope of
finding a basis for objection that lies beyond the matters covered in the
Regional Director's investigation.
The objecting party may bring to the Regional Director's attention any newly
discovered evidence that bears directly on the timely objections, for such
evidence is more apt to aid than to encumber him. The interest in insuring the
employees were not coerced also warrants the Regional Director's consideration
of unrelated misconduct, unknown to the objecting party at the time the
objections were filed, the existence of which comes to its attention while the
Regional Director is conducting his investigation. However, since
consideration of such matters might enlarge the scope and delay the conclusion

of the investigation, they normally should be considered only upon presentation

of clear and convincing proof that they are not only newly discovered, but also,
previously unavailable. We deem this limitation necessary in order to
discourage both the piecemeal submission of evidence and the leisurely
continuation of private investigations while the investigation should be under
the control of the Regional Director.3
3

We expect that previously unavailable evidence, when truly encountered,

usually will have come to the objecting party's attention unsolicited, not
through a continuation of its own investigation.

265 N.L.R.B. at 960

1

The other Board opinions cited as authority by the Regional Director are Parks
Food Service, 235 N.L.R.B. 1410 (1978), and Tuf-Flex Glass, 262 N.L.R.B.
445 (1982), aff'd 715 F.2d 291 (7th Cir.1983). Both are consistent with
American Safety and clearly distinguishable from the present case. In Parks
Food, the union filed exceptions after the Regional Director had completed his
investigation and report. 235 N.L.R.B. at 1410 n. 1. In Tuf-Flex also, the
objections were made after the hearing officer completed his investigation and
report. 262 N.L.R.B. at 445 n. 3. Such objections are untimely under American
Safety, as this court noted in Campbell Products. 623 F.2d at 882 n. 4

Other circuits also require that the Board explicate the policy grounds for
changing its established practices. See, e.g., IATSE v. NLRB, 779 F.2d 552,
555 (9th Cir.1985); Consolidated Papers, Inc. v. NLRB, 670 F.2d 754, 757 (7th
Cir.1982); NLRB v. West Sand and Gravel Co., 612 F.2d 1326, 1333 n. 5 (1st
Cir.1979)