United Biscuit Co. of America

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither is there merit in the General Counsel's argument that the Board was entitled to rely on Respondent's earlier representation of compliance . Respondent's letter of September 25, 1956, stated only its belief that proper reinstatement had been offered the discriminatees . There is no evidence that the Board's representa- tives accepted that without question, or as an absolute assurance, or that they failed to investigate it. Indeed, it is difficult to see how, in their constant checking and rechecking of the amounts due for back wages, they could have failed to con- sider the questions (ultimately raised by Greene) whether certain of the discrimi- natees had in fact been put on different jobs and at different pay. Furthermore, Ramsey's testimony showed that Wall not only raised the question in one instance, but that he absolved Respondent after further investigation. Thus the evidence showed that so far as compliance with the prior order was concerned, the remedying of the reinstatements stood on substantially the same ground as the payment of the back wages. Both were subject to the Board's check- ing, and both were settled as promptly as the progress of the Board's compliance procedures permitted. Because of the conclusions herein reached, it is necessary to consider the Re- spondent's contentions only briefly. The main burden of Respondent's argument was that, having bargained to com- pliance with the 8 (a)(5) portion of the order, it cannot, as a matter of law, be precluded from a full acquittance on that portion of the directive because of the pendency of questions concerning compliance with the 8(a)(3) provisions of the order. Respondent conceded that there are no cases which support that conten- tion, and the Trial Examiner rejects it as a sound principle of law. In the present case, for example , if Respondent had wilfully or deliberately withheld reinstate- ment from the discriminatees pending termination of its short-term contract with the Union, it could well have been precluded from asserting a loss of majority which may have been attributable to those unremedied unfair labor practices. Respondent argued at one point that the only manner by which the Board could seek to remedy the alleged violation was through contempt proceedings in the court of appeals . That contention is rejected; a new Section 10(b) proceeding was plainly an appropriate alternative action . Thompson Products, Inc., v. N.L.R.B., 133 F. 2d 637, 639-40 (C.A. 6); cf. N.L.R.B. v. Reed & Prince Manu- facturing Company, 196 F. 2d 755, 759-60 (C.A. 1). In conclusion, I find on the basis of the entire evidence and for the reasons stated above that Respondent has not refused to bargain within the meaning of the Act. [Recommendations omitted from publication ] Bowman Biscuit Company, Division of United Biscuit Company of America and American Bakery and Confectionery Workers International Union, AFL-CIO, Petitioner. Case No. 30-RC- 1442. March 13, 1959 SECOND SUPPLEMENTAL DECISION AND DIRECTION OF THIRD ELECTION Pursuant to Supplemental Decision, Order, and Direction of Sec- ond Election 1 issued by the Board on October 22, 1958, in the above-entitled proceeding, a second election by secret ballot was conducted on November 7, 1958, under the direction and supervision of the Regional Director for the Seventeenth Region, among the employees in the unit found appropriate by the Board. Upon the conclusion of the election the parties were furnished a tally of ballots. The tally showed that, out of approximately 469 eligible I Unpublished. 123 NLRB No. 32. BOWMAN BISCUIT COMPANY 203 voters, 448 ballots were cast of which 256 were for the Petitioner ; 191 were for the Bakery and Confectionery Workers International Union of America (Independent) and Biscuit and Cracker Workers, Local 240, Ind., the Intervenor herein ; one ballot was challenged ; and none were void. On November 13, 1958, the Intervenor filed timely objections to conduct affecting the results of the election. On January 15, 1959, following an investigation, the Regional Director issued and duly served upon the parties his report on objections, in which he found no merit in the objections, recommended that the objections be overruled, and the Petitioner be certified as the bargaining representative of the employees in the unit. The Intervenor filed timely exceptions to the report on objections. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Fanning]. The Intervenor's objections allege, inter alia, that just prior to the election herein, the Employer and Petitioner negotiated and executed a national agreement for a number of plants including the one involved herein, and that if the latter was not in fact covered by'the agreement, the Petitioner, in its preelection campaign, misrepresented such fact to the employees in the instant unit. The Regional Director's report shows that on October 31, 1958, the United Biscuit Company, of which the Employer is a subsidiary, and the Petitioner signed a 'national agreement, effective November 1,1958 , covering seven plants located in various parts of the country, but not the plant here involved. On November 4, 1958, 3 days before the election involved herein, this contract was first called to the attention of employees in the unit by the Petitioner's distribution of the following handbill printed in boldface type : NEW UNITED BISCUIT CONTRACT EFFECTIVE November 1, 1958 Negotiated by ABC-AFL-CIO Provides for WAGE INCREASE OF 12c 1958 WAGE INCREASE OF 11c 1959 WAGE RATE PROTECTION On New Machines and Methods IMPROVED VACATIONS OTHER IMPROVEMENTS 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representatives of National ABC Negotiating Committee will discuss all Terms of New Contract and answer all questions, at a meeting on November 5, 1958. On November 6, 1958, the day before the election, the Petitioner distributed a second handbill to the employees in the unit, printed in boldface type in the form of election ballot, reading in part : WE ALL VOTE FOR A NEW AND BETTER CONTRACT EFFECTIVE NOV. 1, 1958 SIGNED CHICAGO, ILLINOIS, OCT. 31, 1958 BY UNITED BISCUIT COMPANY OF AMERICA AND ABC-AFL-CIO FOR-WAGE INCREASE 23c PER HOUR 1958-1959 VOTE AFL CIO ABC Following the same format, the handbill lists other benefits of the agreement and at the end there was an "X" marked in a box under the name of the Petitioner. On November 5, the Petitioner mailed to the employees a docu- ment captioned "Guarantee," containing seven closely printed para- graphs, one of which stated that the Petitioner guarantees the employees a contract equal to the national agreement. Accepting the Regional Director's finding that the national agree- ment was not in fact applicable to the instant plant, we are unable to agree with his further conclusion that the record failed to establish that the Petitioner did not- mislead the employees to the contrary. In our opinion, it is clear from the timing, the format, and the text of the handbills of November 3 and 6, that the Peti- tioner intended to convey the erroneous impression to the employees and for the latter reasonably to believe that they would automati- cally become beneficiaries of the national agreement if they voted for the Petitioner. The only contrary indication is the statement included in the text of the "Guarantee," mentioned above. How- ever, we do not believe that this isolated statement was sufficient to correct the false impression, dramatically created in the handbills. In our opinion the misrepresentation of the true facts not only added prestige to the Petitioner and placed it in an advantageous position but also lowered the standards of campaigning to a level which impaired the untrammelled expression of free choice by the employees in the unit. We find, therefore, that the aforesaid objection raises material and substantial issues concerning conduct THE KROGER COMPANY 205 affecting the results of the election .2 Accordingly, we shall set aside the second election in this case and order that a third election be held. [The Board set aside the election held on November 7, 1958.] [Text of Direction of Third Election omitted from publication.] 2.We do not deem it necessary to make a determination as to the remaining objections of the Petitioner. The Kroger Company and Bakers Union No. 4 of Greater St. Louis, American Bakery and Confectionery Workers Inter- national Union, AFL-CIO, Petitioner and Local Unions No. 4 Auxiliary and 254, Bakery and Confectionery Workers Inter- national Union of America, Joint Petitioners. Cases Nos. 14-RC-3404 and 14-RC-3438. March 13, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On December 2, 1958, pursuant to a Decision and Direction of Elections issued on October 28, 1958,' as later amended,2 elections were conducted under the direction and supervision of the Regional Director for the Fourteenth Region among, the employees in the vot- ing groups found appropriate by the Board. At the conclusion of the elections, the parties were furnished with tallies of ballots. The tally for group 1 showed that of approximately 261 eligible voters, 88 voted for Local Unions No. 4, No. 4 Auxiliary, and 254, Bakery and Confectionery Workers International Union of America (BCW) ; 120 voted for Bakers Union No. 4 of Greater St. Louis, American Bakery and Confectionery Workers International Union, AFL-CIO, herein called ABC; and 3 cast challenged ballots. The challenged ballots were insufficient in number to affect the results. The tally for group 2 showed that, of approximately 111 eligible voters, 81 voted for, and 17 against, Locals No. 4 Auxiliary and 254, BCW. There was 1 void ballot. On December 5, 1958, the three BCW locals filed objections to conduct affecting the results of the election. The Regional Director investigated the objections and, on January 22, 1959, issued and served upon the parties his report, finding the objections to be with- 1 Unpublished. 2 By telegraphic Order, dated November 21, 1958, granting Motion to Correct Decision and Direction of Elections , filed by Intervenors , Local 4-A and 4, Bakery and Confec- tionery Workers International Union of America ; and by Order Amending Direction of Elections , dated November 25, 1958, authorizing Regional Director 15 additional days in which to hold the elections. 123 NLRB No. 30.