Robbins & Myers, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robbins & Myers, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 9-CA-10296 March 16, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 21, 1976, the National Labor Relations Board issued a Decision and Order in the above-enti- tiled proceeding in which it found that Respondent has engaged in and was engaging in certain unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended, and ordered Respondent to cease and desist therefrom, and to take certain affir- mative action to remedy such unfair labor practices.' Respondent thereupon petitioned the United States Court of Appeals for the Sixth Circuit to review the order of the Board, contending that the Board's order should be set aside upon the ground that the order is based on an invalid certification. Respondent argued that the Board had improperly sustained the Union's objections to the second election in which the major- ity of the employees had voted against union repre- sentation, had improperly overruled Respondent's objections to the third election, and, thus, had im- properly certified the Union. The Board filed a cross- application for enforcement of its Order. On June 20, 1978, the court issued its decision2 in which it re- 226 NLRB 544. Respondent's defense to the unfair labor practice allega- tion was that the United Steelworkers of America, AFL CIO CLC, herein the Union, had not been properly certified as the bargaining representative and, thus, Respondent had no duty to bargain with it. The Board granted the General Counsel's Motion for Summary Judgment on the ground that Re- spondent's defense only raised issues that had already been litigated and resolved in the underlying representation case. The following is a brief summary of the proceedings in the underlying representation case. See 266 NLRB at 544 545 for a more complete discus- sion. The underlying representation case was initiated by the Union when it filed a petition with the Board seeking to represent the production and main- tenance employees at Respondent's Gallipolis, Ohio, plant. Three represen- tation elections were held. On February 21, 1974, in the first election, a majority of the employees voting cast their ballots for the Union. On October 29, 1974, the Board issued a decision adopting the Hearing Officer's report which recommended that one of Respondent's objections be sustained and that a second election be directed. On November 27, 1974, a second election was held and a majority of the employees voting cast their ballots against representation by the Union. On June 20, 1975, the Board issued a decision adopting in part the Regional Director's findings and recommendations with regard to the Union's objections, and directed a third election. On September 25, 1975, a third election was held and the Union received a majority of the votes cast. On April 6, 1976, the Board issued its Decision and Certification of Representative in which it adopted the Regional Director's findings and recommendations that Respondent's objections be overruled and the Union be certified as the exclusive collective-bargaining representative. On May 5, 1976, the Union filed a charge alleging that Respondent had violated Sec. 8(aK1) and (5) of the Act by refusing to bargain with the Union and, on June 3, 1976, the General Counsel issued the complaint in this proceeding alleging the same. 2 Robbins & Myers, Inc. v. N.L.R.B. 577 F.2d 382 (6th Cir. 1978). versed the Board's finding that certain of the Union's objections to conduct affecting the results of the sec- ond election warranted setting aside the election and remanded the case to the Board for consideration of the remaining objections to the second election which the Board had found unnecessary to decide in the first instance. On August 29, 1978, the Board advised the parties that it had decided to accept the remand and that they might submit statements of position with respect to the issues raised by the remand. Thereafter, Re- spondent filed a statement of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. On remand, the sole issue before us is whether in light of the court's decision the second election was properly set aside. The Union filed five objections to conduct affecting the results of the second election. The Regional Director in his Report on Objections to Second Election and Recommendations to the Board recommended that portions of the Union's first, third, and fifth objections should be sustained, that the sec- ond election should be set aside, and that a third elec- tion should be directed. The Board adopted the Re- gional Director's recommendation that a new election be directed, but a majority of the panel found it un- necessary to consider the issues raised by the Union's Objection 5 since the conduct embraced by Objection 13 was sufficiently serious to warrant setting aside the election. As stated above, the court disagreed with this finding of the Board. Accordingly, on remand only Objection 5 remains before us for consideration. In his investigation of the Union's Objection 5, the Regional Director examined the contents of a speech which Respondent's president, Hennessey, made to different groups of employees the day before the elec- tion, on company property, and during working hours.4 The Regional Director found that certain statements in the speech constituted objectionable conduct sufficient to set aside the election. Specifi- 3 Objection 3 alleged as objectionable threats and promises essentially identical to those raised in Objection I and thus were considered together by the Regional Director and the Board. I In Objection 5 the Union alleged that in addition to the conduct specified in Objections 1-4, Respondent by "other acts and conduct" interfered with the election. The Regional Director found that the evidence offered by the Union in support of its allegations in Objection 5 was insufficient to establish objectionable conduct. However, as noted above, the Regional Director also examined the text of a speech delivered by Respondent's president and found certain statements to be objectionable misrepresentations. Although the Union had referred to that speech in another objection and had only complained of certain alleged threats and promises of benefits, the Regional Director was "not required to, nor [could] he properly, ignore evidence relevant to the conduct of the elec- tion ... simply because the Union may not have specifically mentioned such conduct in its objections." American Safety Equipmenr Corporation, 234 NLRB 501 (1978). 241 NLRB No. 11 102 ROBBINS & MYERS, INC. cally, the Regional Director found that three passages constituted misrepresentations involving substantial departures from the truth at a time which prevented the Union from making an effective reply, and that such misrepresentations could reasonably be expected to have had a significant impact on the election. Ac- cordingly, applying the standard enunciated in Holly- wood Ceramics Company, Inc.,5 the Regional Director recommended setting aside the election. The first passage involved Respondent's character- ization of the employees' right to oust the Union once they had selected it as their collective-bargaining rep- resentative: What the pushers have not told you, and hope you do not realize, is that once a union gets in, there is basically no turning back-you are stuck with it from then on. The Regional Director found this passage objection- able in that it misled the employees as to their right, as provided in Section 9(c) of the Act, to petition for an election to decertify a union. Respondent argues that the statement is not mis- leading since it does not purport to be a full descrip- tion of Section 9(c) and in view of the success rates of decertification petitions, it merely states the reality that "basically" unions are rarely ousted. Finally, Re- spondent contends that the Board has held to be unobjectionable stronger statements on the same sub- ject. We agree with the Regional Director. Section 9(c) of the Act provides employees with a clear and un- mistakable right to oust a union as their collective- bargaining representative. Thus, Hennessey's state- ment that "there is basically no turning back" is obvi- ously misleading. Nor does the use of "basically" sig- nificantly lessen the degree of misrepresentation. The right to file a petition to decertify a union is as sub- stantial as the right to file a petition for union repre- sentation. The failure to allude to the right to oust a union when coupled with the admonition that "there is basically no turning back" is clearly an attempt to disguise that right and to convey the impression that employees have little or no recourse against a union with which they have become disaffected. 6 ' 140 NLRB 221, 224 (1960). Respondent's contention that Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), is dispositive of the issues here is without merit. In General Knit of California, Inc., 239 NLRB 619 (1978), the Board overruled Shopping Kart and returned to the standard for review of campaign propaganda as expressed in Hollywood Ceramics. Furthermore, since both the representation and unfair labor practice proceedings in this case were originally decided under the principles enunciated in Hollywood Ceramics there is no basis for applying Shopping Kart on remand. Blackman- Uhler Chemical Division-Synalloy Corporation, 239 NLRB 637 (1978). 6 Northlake Convalescent Hospital, 173 NLRB 992 (1968), which is relied on by Respondent, is distinguishable from this case. In Northlake, the Board found the allegedly objectionable statement to be "ambiguous and [to] not constitute such a misrepresentation as would impair a free expression of choice by the employees." In contrast, the statement in this case clearly and This misrepresentation could reasonably be ex- pected to have had a significant impact on the elec- tion. By misrepresenting the finality of the employees' selection of the Union as their representative, Re- spondent has unfairly distorted the consequences of making such a decision. Common sense dictates that an irreversible decision will be approached with greater caution. Any hesitation or reluctance to vote for union representation will naturally be increased when the risk of making that decision is exaggerated by the spectre of an unbreakable commitment. Simi- larly, presenting the decision to vote for union repre- sentation as irreversible also affects the employees' ability to evaluate other election propaganda. Em- ployer suggestions as to the deficiencies of union rep- resentation which otherwise might be dismissed in light of the opportunity to later oust the union if those allegations prove to be true are not so easily disregarded when that opportunity does not exist. Finally, as a part of one of Respondent's central themes in the speech this misrepresentation is espe- cially influential. Hennessey's concluding message is that the employees should give management another year without the Union. This appeal is clearly more attractive in the context of the distorted picture of the alternatives that Respondent had presented to the employees: one more year with management or for- ever with the Union. The second objectionable passage involved the rights of employees to communicate with their em- ployer once they are represented by a union. A union is nothing more than an outsider. When this outsider comes on the scene the em- ployees lose all rights for direct communication with the Company. The Regional Director found that this statement mis- represented the rights provided in Section 9(a) of the Act. Respondent contends that Board precedent has permitted similar and stronger statements by other employers.7 unambiguously conveys the impression that the employee's choice of repre- sentative is irreversible. I The cases cited by Respondent are not dispositive of the issue before us for two reasons. First, Hennessey's statement is stronger and broader than any statement in those cases. His comments were in complete contradiction to the right provided by statute. His misrepresentation was unambiguously extreme both in stating individual rights were completely eliminated and in extending this restriction generally to communication with the employer. Second, none of the cases cited by Respondent nor related precedent specif- ically address the issue which is presented here. In those cases, the Board analyzed the statements, which described the right of individual employees to directly communicate with their employer, in terms of whether the em- ployer was threatening to bar such access in retaliation for selecting union representation or whether the employer was merely predicting the future reality of a grievance procedure once a union is involved. Compare Han-Dee Pak, Inc., 232 NLRB 454 (1977), and Graber Manufacturing Company., Inc., 158 NLRB 244, 246-247 (1966), enfd. 382 F.2d 990 (6th Cir. 1967); with (Continued) 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first proviso to Section 9(a) of the Act em- phatically reserves to employees the right "to present grievances to their employer and to have such griev- ances adjusted, without the intervention of the bar- gaining representative." Hennessey's statement flatly declares otherwise stating that "all rights for direct communication" (emphasis supplied) are lost. Thus, we agree with the Regional Director that Hennessey's statement constitutes a misrepresentation involving a substantial departure from the truth. That this misrepresentation is one which could rea- sonably be said to have a significant impact on the election is also clear. By its very nature, a representa- tion election involves the decision whether to sacrifice certain individual rights and interests in favor of col- lective action and representation by a union. Cer- tainly the extent to which the Act has preserved the rights of individual employees even after a union has been selected is a matter of great concern to the em- ployees in the process of making that decision. Thus, Respondent's misrepresentation impacts directly on the employees' evaluation of an important consider- ation in the election by erroneously exaggerating the extent to which the employees lose their individual rights to the collective representative. The final objectionable passage purported to de- scribe the union-security provision that the union would be likely to demand: Worzalla Publishing Co., d/b/al National Bookbinding Co., 171 NLRB 219, 220 (1968), and Westmont Engineering Co., 170 NLRB 13 (1968). In those cases in which the statements were found to constitute threats, the Board determined that by distorting the employees' right under Sec. 9(a) of the Act the employer was not simply describing the future, but instead was implicitly indicating that, regardless of the statutory right, it would deny the employees the benefit of direct access if they chose union representation. See Cosmo Graphics, Inc., 217 NLRB 1061, 1065 (1975); Jacob Wiesel d/b/a Saticoy Meat Packing Co., 182 NLRB 713, 714 (1970); Tunica Manufacturing Com- pany, Inc., 182 NLRB 729, 740 (1970); Henry I. Siegel Co., Inc., 172 NLRB 825, 837 (1968), enfd. in pertinent part 417 F.2d 1206, 1215 (6th Cir. 1969). Bradenburg Telephone Company, 164 NLRB 825, 833-834 (1967), enfd. in pertinent part 408 F.2d 377 (6th Cir. 1969). However, in the absence of other evidence of coercion, the Board has been reluctant to find similar statements to constitute coercive threats. See Allied Stores of New York, Inc., d/b/a Gertz, 197 NLRB 718, 723 (1972); C K Coal Company, 195 NLRB 1038, 1039 (1972); Bostitch Division of Textron, Inc., 176 NLRB 377, 379 (1969); but see James Hotel Company, a Corporation d/bla Skirvin Hotel and Skirvin Tower, 142 NLRB 761, 763 (1963) (statement was not as strong a misstate- ment of the law). In none of these decisions did the Board consider, as we are asked to do in this case, whether the statement, even if not a threat, was objectionable in view of the standards of conduct for campaign statements set forth in Holly- wood Ceramics, supra, and recently reaffirmed in General Knit, spra. Al- though clearly interrelated in this case, the determination of whether a state- ment constitutes a threat or an objectionable misrepresentation involves different inquiries and reflects different concerns. In the former analysis, the focus of consideration is whether the employees' free choice has been inter- fered with by improperly attaching a penalty to the exercise of that choice. In the latter approach, however, the question is whether the employees' free choice has been interfered with by the improper misrepresentation of some fact on which the employees might base their choice. Thus, that statements in the cases relied on by Respondent were found not to be threats to with- draw the benefit of direct access to management is not dispositive of the issue here since it is the distortion of relevant information that constitutes the interference in this case and not the implied threat of retaliatory action. If the union is elected, there are usually two things that they go after: 1. The first thing they go after is a closed shop. Closed shop means that the Company agrees that no non-union (Non-excluded) em- ployees will be employed by the Company-that everyone is union. The Regional Director found that this statement con- stitutes a material misrepresentation since "presum- ably the Petitioner would not seek an unlawful union security contractual provision-i.e., a 'closed shop.' " Respondent argues that the use of closed shop is lay- man's terminology for a permissible union-security provision and that Board precedent has found the use of the term unobjectionable. Contrary to Respondent's characterization, how- ever, the statement in this case went beyond merely referring to a permissible union-security provision as a closed shop. 8 Hennessey's statement warns clearly that only union people will be employed by Respon- dent under the closed shop. Of course, this represen- tation is substantially incorrect in two important re- spects. First, new employees need not be union members and are entitled to a 30-day grace period before being required to pay any dues or fees. Second, all employees are only required to meet their financial core obligations and need not become members of the Union. Thus, we conclude that Hennessey's state- ment is a substantial misrepresentation. 9 We also agree with the Regional Director's judg- ment that such a misrepresentation could reasonably be said to have a significant impact on the election. The implication of Hennessey's statement is that the Union will seek a closed-shop provision under which an employee would lose his job if he insisted on his right to refrain from becoming a union member. This misstatement leaves the impression with the employ- ees that if they exercise a protected right they risk losing their jobs. Accordingly, we conclude that the employees are likely to be influenced by it. In summary, these misrepresentations distorted the consequences of voting for the Union. The employees were left with the impression that a vote for a union is irreversible, that once a union is selected the employ- ' On this basis, the case cited by Respondent, Pollock Mill Co., 104 NLRB 227, 230 (1953), is distinguishable. I The degree of misrepresentation is increased by Hennessey's subsequent statements concerning the dues-checkoff authorizations: 2. The second thing the union goes after is a simple thing called dues check-off. This simply means that the Company will take out of your check any dues, fines, or assessments, as defined by the union, without question. By not indicating that dues-checkoff provisions are voluntary and by stating that fines and assessments will be collected through the checkoff, Hennessey implied that employees will automatically be subject to union discipline as enforced through fines and assessments. Thus, his comments reinforced the impression left by his closed-shop remarks that actual membership in the union will be required as a condition of employment. 104 ROBBINS & MYERS, INC. ees are excluded from contact with the employer, and that the employees' job security is dependent on full union membership and thus is subject to union disci- pline. The misrepresentations came from a credible source, Respondent's president, and were made to several groups of employees comprising a large ma- jority of the unit populations and occurred the day before the election at a time when the Union did not have an opportunity to make an effective response and when the impact of the statements would be greatest. Although we recognize that in some circumstances each of the misrepresentations made here might not warrant setting aside the election, we conclude that in this case, for the reasons stated above, these misrepre- sentations occurring together are a proper basis for setting aside the second election. Accordingly, we hereby reaffirm our prior findings that the Union was properly certified and that Respondent violated Sec- tion 8(a)(1) and (5) by its refusal to bargain. 'l In its defense to the Union's Objection 2, Respondent indicated that Hennessey spoke to most of the employee complement the morning of the day before the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby affirms as its Order the Order heretofore entered in this proceeding on October 21, 1976. MEMBER PENELLO, dissenting: I find no grounds for setting aside the second elec- tion on the basis of the three alleged misrepresenta- tions." As noted in my dissenting opinion in General Knit of California, Inc., 239 NLRB 619 (1978), I ad- here to the sound principles of Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977). Accordingly, I would overrule the Union's Objection 5, certify the results of the second election, and dismiss the com- plaint in its entirety. " Although the statements found objectionable by the majority were not specifically alleged as such in the Union's Objection 5, 1 nevertheless agree with the majority that those statements were properly before the Regional Director and the Board since other portions of the same speech were the subject of specific objections. See my concurring opinion in American Safety Equipment Corporation, 234 NLRB 501 (1978). 105