National Labor Relations Board v. Palmer Donavin Manufacturing Co.; P-Dmidwest Transport, Inc.

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

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No. 02-2336 NLRB v. Palmer Donavin
Mfg. Co., et al.
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1Resp ondents raised a third objection concerning the Board’s failure
to seal the ballo t box after the election which is not at issue on ap peal.
with the National Labor Relations Board seeking certification
as the exclusive bargaining representative of Palmer
Donavin’s and P-D Midwest’s (“the Respondents”) driver and
warehouse employees. After finding that the Respondents
constituted a single employer, the Regional Director found
that the “petitioned for unit is an appropriate one” and
accordingly directed an election. The Respondents sought
review of the Regional Director’s decision, but the Board
denied review.
Following the Board-conducted election in which the
Union was approved as exclusive bargaining representative,
the Respondents raised timely objections. In their objections,
the Respondents argued that the Regional Director erred in
allowing employees from two separate companies to vote as
a single unit over the objection of the companies and
additionally alleged that the Union engaged in misconduct
during the election period.1 The Board’s Regional Director
conducted an investigation, but–without a hearing–overruled
both of the Respondents’ objections. Thus, the Regional
Director certified the Union as the exclusive bargaining
representative of the Respondents’ driver and warehouse
employees. The Board denied review of the Regional
Director’s decision. The Respondents subsequently refused
the Union’s request to bargain.
Thereafter, the Board’s General Counsel issued a complaint
against the Respondents alleging that their refusal to bargain
with the Union violated Section 8(a)(5) and (1) of the
National Labor Relations Act, 29 U.S.C. § 158(a)(5), (1).
While admitting their refusal to bargain, the Respondents
challenged the validity of the Union’s certification by
repeating their arguments that they do not constitute a single
employer and that the Union had engaged in misconduct
4 NLRB v. Palmer Donavin
Mfg. Co., et al.
No. 02-2336
during the election. The Board, finding that the Respondents
constituted a single employer and had engaged in unfair labor
practices by refusing to bargain, granted summary judgment
in favor of the General Counsel and issued an order requiring
the Respondents to cease and desist their unfair labor
practices and to bargain with the Union upon request. This
case is now before us on the Board’s application for
enforcement of its order.
II.
The Respondents, without filing a cross-appeal for review
of the Board’s order, repeat their earlier allegations of error
and argue that this Court should reverse the Board’s decision
and order. First, we review the Respondents’ argument that
the Board erred in finding that they constituted a single
employer. In reviewing this argument, we will uphold the
Board’s factual findings and application of law to the facts if
supported by substantial evidence in the record. NLRB v. St.
Francis Healthcare Centre, 212 F.3d 945, 952 (6th Cir.
2000).
“[N]ominally separate business entities [are considered] to
be a single employer where they compromise an integrated
enterprise.” Radio & Television Broad. Technicians Local
1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256
(1965) (citation omitted); see also Swallows v. Barnes &
Noble Book Stores, Inc., 128 F.3d 990, 993-94 (6th Cir.
1997). Four well-established criteria govern this
determination: (1) common ownership, (2) common
management, (3) centralized control of labor relations, and (4)
interrelation of operations. Id. The Board held that “the
Respondents constitute a single-integrated business enterprise
and a single employer within the meaning of the Act.” In re
Palmer Mfg., supra, 2002 WL 31257992, at *2. We agree.
Respondent P-D Midwest Transport, as a wholly owned
subsidiary of Respondent Palmer Donavin, shares common

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

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

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

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