           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    NLRB v. Palmer Donavin                     No. 02-2336
        ELECTRONIC CITATION: 2004 FED App. 0138P (6th Cir.)                      Mfg. Co., et al.
                    File Name: 04a0138p.06
                                                                                               _________________
UNITED STATES COURT OF APPEALS                                                                      COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: Ronald Mason, MASON LAW FIRM CO.,
                     _________________                                      L.P.A., Dublin, Ohio, for Respondents. Kathleen Lyon,
                                                                            NATIONAL LABOR RELATIONS BOARD, Washington,
 NATIONAL LABOR RELATIONS X                                                 D.C., for Petitioner. ON BRIEF: Ronald Mason, MASON
 BOARD ,                        -                                           LAW FIRM CO., L.P.A., Dublin, Ohio, for Respondents.
                   Petitioner, -                                            Kathleen Lyon, Julie B. Broido, NATIONAL LABOR
                                -  No. 02-2336                              RELATIONS BOARD, Washington, D.C., for Petitioner.
                                -
          v.                     >                                                             _________________
                                ,
                                -                                                                  OPINION
 PALMER DONAVIN                 -                                                              _________________
 MANUFACTURING CO .; P-D        -
 MIDWEST TRANSPORT , INC.,      -                                             BOYCE F. MARTIN, JR., Circuit Judge. The National
                Respondents. -                                              Labor Relations Board seeks enforcement of its order
                                -                                           requiring Palmer Donavin Manufacturing Company and P-D
                               N                                            Midwest Transport, Incorporated to cease and desist their
   On Application for Enforcement of an Order of the                        unfair labor practices and to bargain upon request. See In re
           National Labor Relations Board.                                  Palmer Mfg. Co., 338 NLRB No. 23 (Sept. 30, 2002),
                   No. 8-CA-33323.                                          reprinted at 2002 WL 31257992. For the reasons that follow,
                                                                            we GRANT the Board’s application for enforcement.
                     Argued: March 10, 2004
                                                                                                          I.
               Decided and Filed: May 13, 2004
                                                                              Palmer Donavin Manufacturing Co., an Ohio corporation,
   Before: MARTIN and CLAY, Circuit Judges; MILLS,                          engages in the wholesale distribution of building materials.
                   District Judge.*                                         P-D Midwest Transport, Inc., a wholly-owned subsidiary of
                                                                            Palmer Donavin, engages in the interstate transportation of
                                                                            Palmer Donavin’s goods. Palmer Donavin and P-D Midwest
                                                                            have at all relevant times been affiliated corporations, which
                                                                            share officers, directors, owners and supervisors.
                                                                              On October 19, 2001, the International Brotherhood of
    *
     The Hon orable R ichard M ills, United States District Judge for the   Teamsters, Local Union No. 377, AFL-CIO, filed a petition
Central District of Illinois, sitting by designation.

                                   1
No. 02-2336                         NLRB v. Palmer Donavin                3    4    NLRB v. Palmer Donavin                      No. 02-2336
                                             Mfg. Co., et al.                       Mfg. Co., et al.

with the National Labor Relations Board seeking certification                  during the election. The Board, finding that the Respondents
as the exclusive bargaining representative of Palmer                           constituted a single employer and had engaged in unfair labor
Donavin’s and P-D Midwest’s (“the Respondents”) driver and                     practices by refusing to bargain, granted summary judgment
warehouse employees. After finding that the Respondents                        in favor of the General Counsel and issued an order requiring
constituted a single employer, the Regional Director found                     the Respondents to cease and desist their unfair labor
that the “petitioned for unit is an appropriate one” and                       practices and to bargain with the Union upon request. This
accordingly directed an election. The Respondents sought                       case is now before us on the Board’s application for
review of the Regional Director’s decision, but the Board                      enforcement of its order.
denied review.
                                                                                                             II.
   Following the Board-conducted election in which the
Union was approved as exclusive bargaining representative,                       The Respondents, without filing a cross-appeal for review
the Respondents raised timely objections. In their objections,                 of the Board’s order, repeat their earlier allegations of error
the Respondents argued that the Regional Director erred in                     and argue that this Court should reverse the Board’s decision
allowing employees from two separate companies to vote as                      and order. First, we review the Respondents’ argument that
a single unit over the objection of the companies and                          the Board erred in finding that they constituted a single
additionally alleged that the Union engaged in misconduct                      employer. In reviewing this argument, we will uphold the
during the election period.1 The Board’s Regional Director                     Board’s factual findings and application of law to the facts if
conducted an investigation, but–without a hearing–overruled                    supported by substantial evidence in the record. NLRB v. St.
both of the Respondents’ objections. Thus, the Regional                        Francis Healthcare Centre, 212 F.3d 945, 952 (6th Cir.
Director certified the Union as the exclusive bargaining                       2000).
representative of the Respondents’ driver and warehouse
employees. The Board denied review of the Regional                               “[N]ominally separate business entities [are considered] to
Director’s decision. The Respondents subsequently refused                      be a single employer where they compromise an integrated
the Union’s request to bargain.                                                enterprise.” Radio & Television Broad. Technicians Local
                                                                               1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256
  Thereafter, the Board’s General Counsel issued a complaint                   (1965) (citation omitted); see also Swallows v. Barnes &
against the Respondents alleging that their refusal to bargain                 Noble Book Stores, Inc., 128 F.3d 990, 993-94 (6th Cir.
with the Union violated Section 8(a)(5) and (1) of the                         1997).      Four well-established criteria govern this
National Labor Relations Act, 29 U.S.C. § 158(a)(5), (1).                      determination: (1) common ownership, (2) common
While admitting their refusal to bargain, the Respondents                      management, (3) centralized control of labor relations, and (4)
challenged the validity of the Union’s certification by                        interrelation of operations. Id. The Board held that “the
repeating their arguments that they do not constitute a single                 Respondents constitute a single-integrated business enterprise
employer and that the Union had engaged in misconduct                          and a single employer within the meaning of the Act.” In re
                                                                               Palmer Mfg., supra, 2002 WL 31257992, at *2. We agree.

    1                                                                            Respondent P-D Midwest Transport, as a wholly owned
      Resp ond ents raised a third objection concerning the Board’s failure    subsidiary of Respondent Palmer Donavin, shares common
to seal the ballo t box after the election which is not at issue on ap peal.
No. 02-2336                   NLRB v. Palmer Donavin          5    6    NLRB v. Palmer Donavin                      No. 02-2336
                                       Mfg. Co., et al.                 Mfg. Co., et al.

ownership with its parent. Additionally, there is substantial      only on the deceptive manner in which representations are
overlap in management and officers of the Respondents. P-D         made.” Id.
exists solely to deliver goods to Palmer Donavin customers,
and its delivery trucks bear Palmer Donavin’s company name.           We review for an abuse of discretion the Board’s
Moreover, they operate from the same facility, have the same       determination that the election allowed the employees to
health, life insurance and profit-sharing plans, use the same      exercise free choice. St. Francis Healthcare Centre, 212 F.3d
payroll system, enjoy the same work holidays, and the              at 951-52. As discussed, however, in conducting this review,
Respondents’ employees occasionally fill in for each other.        we will uphold the Board’s factual findings and its
Furthermore, as the Board described, they have “formulated         application of the law to the facts if supported by substantial
and administered a common labor policy; . . . have provided        evidence in the record. See id. at 952. Likewise, we review
services for and made sales to each other; . . . have shared       for an abuse of discretion whether the Board erred in refusing
common advertising, . . . phones, sales, and purchasing; and       to grant an evidentiary hearing on the issue of whether the
have held themselves out to the public as single-integrated        representation election was conducted fairly. Id. at 963. The
business enterprises.” Id. Thus, from the foregoing, we hold       Board abuses its discretion in refusing to grant an evidentiary
that the Board’s finding that the Respondents constituted a        hearing when the objections and supporting proof offered by
single employer is supported by substantial evidence in the        the party contesting the election demonstrates the existence of
record.                                                            material issues of fact as to whether a fair election was held.
                                                                   Id.; Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 119 (6th
                              III.                                 Cir. 1992). “However, we will remand a case for an
                                                                   evidentiary hearing only where ‘an employer’s objections and
   Second, we address the Respondents’ argument that               supporting proofs indicate that there exist material, factual
misconduct occurred during the representation election, which      disputes with the Regional Director’s report which, if proved,
warranted the setting aside of the results. We will also           demonstrate that the election should be overturned.’” St.
address the Respondents’ related argument that the Board           Francis Healthcare Centre, 212 F.3d at 963 (quoting
erred in overruling their objections without a hearing. A party    Colquest, 965 F.2d at 119).
seeking to set aside the results of a representation election
bears the significant burden “of demonstrating that the               The Respondents alleged that during the election, the Union
election was conducted unfairly.” St. Francis Healthcare           officials spread a rumor that the Respondents’ counsel,
Centre, 212 F.3d at 951. To meet this burden in a claim            Ronald Mason, had bribed the company election observer,
premised upon an alleged misrepresentation, the objecting          Christopher Keiber. An affidavit filed by Attorney Mason
party must demonstrate that “the misrepresentation is so           reflects the following sequence of events. Before the election,
pervasive and the deception so artful that employees will be       Attorney Mason and Keiber met in an unlighted hallway
unable to separate truth from untruth and . . . their right to a   where Keiber gave Mason a list of employees to review. The
free and fair choice w[as] affected.” Van Dorn Plastic Mach.       list included the names of employees that were going to be
Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984). Moreover,          challenged. After Attorney Mason reviewed the list, he
Van Dorn instructs that an election should not be set aside        returned it to Keiber. Apparently, the union observer, Jeff
“on the basis of the substance of representations alone, but       Gilber, viewed this paper exchange from a distance. Prior to
                                                                   the second session of voting, an agent of the Union spoke
No. 02-2336                         NLRB v. Palmer Donavin                 7    8    NLRB v. Palmer Donavin                       No. 02-2336
                                             Mfg. Co., et al.                        Mfg. Co., et al.

with Attorney Mason and Respondents’ President, Ron                               As the parties contesting the representation election results,
Calhoun, and told them that “three witnesses” had seen                          the Respondents had the burden of demonstrating not only
Mason pay money to Kieber and that Calhoun “needed to                           that a pervasive misrepresentation occurred that was so
remove the stench from this election as soon as possible.”2                     artfully drawn that the voters could not separate “truth from
After the voting had concluded, at the Union agent’s request,                   untruth,” Van Dorn, 736 F.2d at 348, but also that the
Kieber produced the piece of paper which confirmed that it                      misrepresentation “interfered with the voter’s exercise of free
was only a list of employees and the Union agent publicly                       choice to an extent that the conduct materially affected the
acknowledged this fact. The Respondents argued that the                         results of the election,” Colquest, 965 F.2d at 120. In this
Union agent’s statements demonstrated that the Union had                        case, the only evidence that the Respondents offered
spread false rumors during the election that bribery had                        regarding the alleged misrepresentation was the self-serving
occurred and that this conduct warranted the setting aside of                   affidavit of their counsel, Attorney Mason. Not only does this
the election.                                                                   single affidavit fail to depict an egregious example of a
                                                                                pervasive, deceitful misrepresentation, it also fails to
  The Regional Director, after an investigation, found that the                 demonstrate that the alleged misrepresentation “interfered
Union agent’s statements “amount[ed] to nothing more than                       with any voter’s exercise of free choice.” Id. Indeed, as
an unfounded, misrepresentation of fact by one party’s agent                    discussed, the Union official accused of instigating the
during the course of the election” and that they did not “rise                  misconduct was not even named in the affidavit.
to the level of objectionable conduct warranting the setting
aside of the election.” Moreover, the Regional Director                           The Respondents, attempting to excuse their lack of
concluded that there existed no evidence to demonstrate that                    evidence, argue that it could not prove the extent and effect of
the voters were aware of the bribery allegation and certainly                   the misconduct without a hearing because it could not compel
there existed no evidence that this alleged misconduct                          testimony from the employees or Union officials. We find
“created an overall atmosphere which impaired a fair and free                   this argument utterly unpersuasive. First, it completely
election.” Our review of the record convinces us that the                       ignores that it was their burden to demonstrate “that the
Board did not abuse its discretion in finding that the alleged                  election was conducted unfairly.” St. Francis Healthcare
misconduct did not warrant the setting aside of the                             Centre, 212 F.3d at 951. Second, it also ignores that it was
representation election and that the Respondents had failed to                  their burden to come forward with evidence that would
demonstrate the existence of material issues of fact                            warrant conducting a hearing in the first instance. See
warranting an evidentiary hearing.                                              Colquest, 965 F.2d at 119. Third, even if we accept the
                                                                                Respondents’ argument that the employees and Union
                                                                                officials would not voluntarily give evidence–despite the lack
                                                                                of any evidence to suggest that the Respondents even
                                                                                attempted to take advantage of such voluntary
    2
                                                                                procedures–this does not explain their failure to offer the
      The affidavit does not name the Union agent; rather, the affidavit        affidavit of someone other than their own attorney, such as,
refers to the Union agent, as the Unio n organizer, “name unknown.”             for example, their President, Ron Calhoun.
W hile, the Re gional Dire ctor refers to the agent as Ric hard Kepler, it is
not evident from the record at what point in the proceedings the Union
agent was identified as such.
No. 02-2336                   NLRB v. Palmer Donavin          9
                                       Mfg. Co., et al.

   Finally, we find Van Dorn particularly instructive in this
case. Van Dorn, as discussed, instructs that we should not set
aside an election’s results on the basis of representations
alone, but “only on the deceptive manner in which
representations are made.” Van Dorn, 736 F.2d at 348. Here,
Respondents have not alleged that the Union made the
statement about bribery in a deceptive manner, only that the
substance of the statement was false. For this independent
reason, we find that the Board did not err in overruling the
Respondents’ objection to the election based upon the alleged
Union rumor.
  In sum, we find that the Board did not err in finding that the
Respondents constituted a single employer and in refusing to
set aside the representation election’s results because the
Respondents did not meet their burden under Van Dorn.
Additionally, we find that the Board did not err in overruling
the Respondents’ objections without the benefit of a hearing
because the Respondents did not meet their burden of
demonstrating that material issues of fact existed as to the
fairness of the representation election. See id. at 963;
Colquest, 965 F.2d at 119.
  Accordingly, we GRANT the Board’s application for
enforcement of its order.
