Carl T. Mason Co., Inc.

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least in part because of the Union's representation that it was waiving payment of its "regular initiation fee." It is manifest from all the foregoing that the Union's purported waiver of its so-called "regular initiation fee" involved a substantial misrepresentation as to a material fact," and that cards obtained through such misrepresentation do not reflect the free will of em- ployees signing them. Accordingly, as the Union was not freely designated by a majority of the employees as their representative in the appropriate unit, the Union was not entitled to exclusive recognition. This being so, the Respondent did not violate Section 8(a) (5) by refusing to recognize the Union. We do not agree with our colleagues that the "misrepresentation here does not com- pare in gravity with that struck down by the court in Rohtstein." We consider the misrepresentation involved in the instant case to be as grave as that involved in Rohtstein or, at least, sufficiently serious to vitiate the cards. And , there appears to be no warrant for our colleagues' assertion that "in Rohtstein the one crucial card was signed only because of the nakedly false assertion that the union had already achieved its majority." For all that appears, there may well have been one or more other factors which induced the employee to sign the crucial card . In any event, it is clear that the misrepresenta- tion in the instant case substantially contributed to induce the employees to execute the cards. Carl T. Mason Co., Inc. and Machinery, Scrap Iron, Metal and Steel Chauffeurs, Warehousemen, Handlers, Helpers and Alloy Fabricators Union, Local No. 714, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 13-RC-8195. May 6, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on December 20, 1961, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that, of approximately 69 eligible voters, 12 ballots were cast for, and 50 ballots were cast against, the Petitioner, and 2 ballots were challenged. Thereafter, the Petitioner filed objec- tions to conduct affecting the results and conduct of the election. After investigation, the Regional Director, on February 8, 1962, issued and served upon the parties his report on objections in which he recommended that all the objections be overruled. Thereafter, the Petitioner filed timely exceptions to the Regional Director's report. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 142 NLRB No. 56. CARL T. MASON CO., INC. 481 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that all production and maintenance employees employed at the Employer's Itasca, Illinois, plant, but excluding office and plant clerical employees, technical em- ployees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Petitioner's objections are twofold: First it objects to the matter contained in a series of documents sent by the Employer to the employees during the critical period; second, it objects to the show- ing of the film "And Women Must Weep" to an employee audience, prefaced by reading to that audience a portion of one of the Employer's above-noted documents which includes the statement that the Em- ployer is not going out of business, but hopes that some ill-considered action by the employees will not force it out of business. The Regional Director considered these objections separately, and found each without merit. We disagree. The Petitioner's exceptions to the Regional Director's report, in our view, have substantial merit, and for the reasons below we shall set the election aside. In election proceedings, it is the Board's function to determine the uninhibited desires of the employees under conditions as nearly ideal as possible. The Board has long recognized, however, that elec- tion propaganda is often characterized by "prattle rather than preci- sion" and the verbal exchanges involved generally can be evaluated by the employees themselves as partisan electioneering. Under such circumstances the Board has generally not interfered with the election process. However, where the proper laboratory conditions have been jeopardized by material misrepresentations, threats, or promises of benefit, either express or implied, the Board has not hesitated to set elections aside. We are of the opinion that the Employer here has overstepped the bounds of permissible campaigning, and that its con- duct has rendered a free election impossible. We are specifically concerned with letters distributed to the em- ployees. We note the following statements which appear in these letters : We do not want a bunch of rules and regulations to tell us how to work, and we do not want outsiders coming between the Company and its employees. We have come a long way in the one year since last fall. But the job is only begun. We still have a long way to go to put the Company completely back on its feet and to have everyone prosper. If the start we have 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made together is destroyed,, our newly gained business would go elsewhere. This is a business of a relatively small number of large customers. We can not afford to have any of our customers, new or old, large or small, place their business some- where else. If this happened, the future of our Company could be in serious trouble. What would you do if you were to learn on short notice that you would be out of work because of a strike? -you would not be eligible for unemployment insurance -no other company would hire you because you might be only a temporary employee -you would be unable to get a loan -your savings would be depleted * * * * * * * What would happen to our customers if there were a strike. Ours is a business of making deadlines, of delivering material to fit the timing of customers sales campaigns. How long do you think we would keep our customers if we failed on delivery and they knew no work was being done due to a strike? Cancelled orders can mean customers permanently lost. If there are no customers, there is no business-this certainly is not job security. [Emphasis in original.] But what happens to a company during a strike? Well, some companies that have been making a profit and have been strong for many years, can weather a strike even though the employees can't, but not so with Masons. You know from our meetings the condition of this company a year ago at the time of the change. It was on the verge of collapse. Taxes unpaid, over- drawn at the bank, sales way down and the many problems as discussed with you in our meetings. A lot of progress has been made since then. Sales are up-almost double. The old taxes are nearly paid off. We have gone from last year's $91,000 loss to profits in some months this year. But for the year, we are trading dollars and this is not enough to correct the problems carried over from the past. * * * * * * * We aren't going out of business. We are simply hopeful that some ill-considered action will not force us out of business. I am being completely honest and above board in everything I say here. This situation is not like many others, where the company may be prospering but holding back a fair shake for employees. We are not prospering but we're improving. We have come a long way up but the company was a long way down. There is still much to be done. CARL T. MASON CO., INC. 483 Employers are not allowed by law to give raises or make prom- ises before an election but you can be sure of one thing-if by teamwork, we solve our problems and make a profit, it will not require a union to see that the employees share in the benefits. There can be no doubt that these statements were intended to instill in the employees a sense of fear that unionization, with its possibility of strikes, would inevitably result in loss of business and thus loss of their jobs. The statement that the Employer is not going out of business is not a negation of this proposition, but rather an intro- duction to the next sentence, which preserves the possibility but attempts to alter the reason by attributing this action to some ill- considered action by the employees. In the entire context of what has been said in this letter, it is clear that the ill-considered action is choice of the Union, which will bring on the dire consequences that the Employer has already described. And this is to be con- trasted with the last paragraph of the quoted material above, where the rewards that will flow from the continued functioning of the present team are presented. These statements, standing alone, would be sufficient, in our view, to warrant setting aside the election. But they do not stand alone. The Employer reenforced the effect of much of the material quoted above by reading it to an audience of employees before showing them the film "And Women Must Weep." We have already discussed that film in Plocliman and Harrison,' and there indicated the grounds of our disapproval. Clearly its powerful emotional effect would strengthen the message the Employer was attempting to convey, that choice of the Union would bring on strikes and many dire conse- quences. Any possible doubt that any employee would have as to what the Employer was thinking of when he referred to an ill- considered action that would force him out of business must have been removed by the showing of the picture. We perceive no reason for attempting to treat the Employer's conduct in fragments. We have already indicated our belief that what happens in an election campaign is to be appraised in total context. We do not intend context to be limited to a mere textual analysis of documents. If any party to an election chooses to use several media to deliver its message they all interact upon and influence each other. Especially is this so where, as here, a speech is given as preface to a film. The effect upon the employees is caused by the total experience, and it is that experience which we must appraise. We therefore hold that the Employer's entire course of action warrants our setting aside the election. 1 Plochman and Harrison Cherry Lane Foods, Inc., 140 NLRB 130. 712-548-64-vol. 142-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] CHAIRMAN MCCULLOOH, concurring : I agree that the election in this case should be set aside. However, I do so not only because of the statements issued by the Employer, but also and more importantly, because of the showing of the motion picture "And Women Must Weep." Twelve days before the election, the president of the Employer assembled the employees in two groups to deliver an antiunion speech and to show them the film "And Women Must Weep." This is the same film shown to employees in the Plochman and Harrison case, supra (see footnote 1), where a majority of the Board set aside the election because of this fact. As the majority opinion in Plochman notes, the film purported to be a true story account of the 1956 Potter-Brumfield strike in Princeton, Indiana, which involved a different company, a different industry, a different union, and a different community. The film is not a docu- mentary. It is a staged production based on a contrived script, played by professional actors, including an actress who impersonates a minis- ter's wife, the narrator. The film tells the story of property destruc- tion, violence, and the near murder of a child allegedly committed by a union during the course of a strike ostensibly called for no justifiable reason. It is organized with sequences skillfully put together so as to achieve the maximum dramatic and emotional impact. The profes- sional acting is smooth and extremely lifelike. In fact, the entire production is so well conceived that the ordinary viewer is likely to consider that it represents the literal truth. No attempt has been made, however, to prove that events happened exactly as they are portrayed in the film. In fact there is ground for believing that the film has distorted the true picture, not only by telling only one side of the story, but by misrepresenting facts.2 The Board has said that in election proceedings it seeks "to provide a laboratory in which an experiment may be conducted, under condi- tions as nearly ideal as possible, to determine the uninhibited desires of the employees." 3 Ideal laboratory conditions would be those in which election appeals were addressed only to reason and based only 2 The Board's public records disclose that in connection with the Potter-Brumfield strike , the International Association of Machinists , which represented the Potter- Brumfield employees , filed unfair labor practice charges against the company ( Case No. 35-CA-728). These unfair labor practice charges were dismissed in part and settled in part. On the other hand, there is no record that Potter-Brumfield ever filed unfair labor practice charges against the union . A court injunction also was issued in connec- tion with the Potter-Brumfield strike which enjoined picket line violence, but at the same time enjoined the company from interfering with legitimate picketing. Both the union and the company were subsequently held in contempt for violating the injunction. 3 General Shoe Corporation , 77 NLRB 124, 127. CARL T. MASON CO., INC. 485 on facts. Unfortunately, such rigorous standards are not absolutely attainable in practice. Accordingly, the Board has had, necessarily, to tolerate less than optimum conduct where in its view the departures from the optimum were not so grave or serious as to warrant a deter- mination that the election under challenge did not represent a free and uncoerced choice by the employees. Within this area, which perforce does not lend itself to precise definition, the ultimate question to be resolved, namely, the validity of the election proceedings, is all too often one of degree. Yet it is fair to say that in the Board's own decisions 4 and also in the spate of court authority which has recently appeared,5 there is a discernible, even a marked, tendency to apply more stringent restrictions upon election propaganda techniques. We may not blind ourselves to this trend. The Board recently stated : 6 Our function, as we see it, is to conduct elections in which the employees have the opportunity to cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise, free not only from interfer- ence, restraint, or coercion violative of the Act, but also from other elements which prevent or impede a reasoned choice. Viewed against these tendencies and standards, the showing of films such as "And Women Must Weep" seems to me to fall incontrovertibly within a proscribed area. Indeed, I believe it would trench upon less stringent limitations. The use of professionally scripted and acted motion pictures in Board elections is a new tactical device of enormous potential and influence. The motion picture is a much more powerful instrument than the printed or spoken word in arousing emotions and influencing attitudes? Not only is its initial impact greater, it also has a more lasting effects From their experience in political elections and their reading of newspapers, most people have learned to treat charges, statements, and promises made in political campaigns with a measure of skepticism. They have learned that exaggerations, misstatements, and appeals to prejudice are an inevitable part of such campaigns, ' E.g., Sewell Manufacturing Company, 138 NLRB 66; Dal-Tex Optical Co., 137 NLRB 1782; The Trane Co., 137 NLRB 1506; Hollywood Ceramics, Inc., 140 NLRB 221; Walgreen, 140 NLRB 1141 5 E.g., N.L R.B. v. Trancoa Chemical Corp., 303 F. 2d 456 (C A. 1) ; N.L R B. v Houston Chronicle Publishing Co., 300 F. 2d 273 (C.A. 5) ; Cross Company v. N.L.R.B., 286 F. 2d 799 (C.A. 6) ; Celanese Corporation of America v. N.L.R.B., 279 F. 2d 204 (C.A. 7), cert. denied 34G8 U.S. 925. 6 Sewell Manufacturing Company, supra. 4 See Note, "Motion Pictures and the First Amendment," 60 Yale L.J. 696, 704-708 (1951) ; Doob, "Public Opinion and Propaganda," 498-526 (1949) ; Charters, "Motion Pictures and Youth, in Public Opinion and Communications," 397 (Berelson & Janowitz ed. 1950) ; Perentesis, "Effectiveness of Motion Picture Trailers as Election Propaganda," 12 Public Opinion Q. 465 (1948). 8 Ibid. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and this experience is a help in evaluating propaganda used in Board elections. However, the case of motion pictures used as propaganda in elec- toral campaigns attendant upon Board elections is different. There is no body of similar experience available to the ordinary voter to permit him to evaluate such presentations. Few individuals are able to see behind the impression of authenticity that a skilled director may create by the use of characters, dialogue, and situation. A so- phisticated person would probably recognize a film such as "And Women Must Weep" for what it is, propaganda intended to create antiunion feeling, and will appropria tely weigh or discount its one- sided and distorted message.' But such films are not meant for so- phisticated audiences. I have no doubt that among audiences of working men and women, as well as others, "And Women Must Weep" is emotionally overpowering. It pictures a labor dispute as one in which Americanism, religion, family, motherhood, and innocent child- hood are arrayed on one side, and goons, brutes, and murderers on the other or prounion side. To achieve this result dramatic liberties were apparently taken with the facts to an extent not fully revealed by this record. "And Women Must Weep" is not mere "prattle" to be tolerated as such.10 Nor does it contribute "to the sober and informed exercise of the franchise." It has no relevance to the election at the plant of the Employer. As I pointed out above, it deals. with a strike more than 6 years ago by another union at a plant of a different company. The clear tendency if not the purpose in showing the film was quite plainly, in my view, to create such an atmosphere of emotional prejudice that employees would not be able to make a reasoned choice of a bargaining representative. I do not think it material that the film was shown 12 days before the election, rather than 1 day as in Plochman and Harrison." The effect could no more be dissipated by a lapse of 12 days than it could by a lapse of 1 day, particularly in the absence of evidence that the Petitioner by its own propaganda was able to neutralize the emotional impact of the film. I do not believe that the Board should tolerate the use of propaganda devices such as this film in elections conducted under its auspices. Such motion pictures are more destructive of freedom of choice than the kind of deceptive hoax perpetrated in United Aircraft 12 or the misrepresentations of fact in Houston Chronicle," which the Board in the first case, and the court of appeals in the second, held lowered cam- paign standards to the point where the elections would have to be 9 But see N.L.R B. v. Houston Chronicle Publishing Co., Supra; N .L.R.B. v. Trancoa Chemical Corp, supra. 10 Olson Rug Company v. N.L.R.B., 260 F. 2d 255, 257 (C.A. 7). 11 Plochman and Harrison Cherry Lane Foods, Inc., supra. 17 United Aircraft Corporation, 103 NLRB 102. 23 N.L.R.B. v. Houston Chronical Publishing Company, supra. CARL T. MASON CO., INC. 487 held over again. Where, as in the instant case, factual accuracy has apparently been sacrificed in order to create an emotional state of intimidation and fear, I believe we would be derelict in our statutory obligation if we condoned such tactics.14 Because I believe that the showing of "And Women Must Weep," as well as the coercive statements made by the Employer destroyed the "laboratory" conditions requisite for the holding of a free election, I join Members Fanning and Brown in voting to set aside the results of the election. MEMBERS RODGERS and LEEnoM, dissenting : The Employer during the critical period distributed to its employees documents which, inter alia, stressed the following: (1) unionization would involve certain financial obligations and changes in working relationships; (2) strikes, "the key to the union's power," are costly to employees as well as the Employer and can lead to adverse economic effects; (3) employee economic gains are dependent upon an em- ployer's business stability and profit position; and (4) the conduct of the Petitioner's officials and their handling of internal union affairs leave much to be desired. The Employer, also, approximately 12 days before the election, showed to its assembled employees a film entitled "And Women Must Weep." The film dealt with events surrounding a strike involving an unidentified union and plant in Princeton, In- diana. Prior to the showing of the film the Employer stressed the points covered under (2) and (3) above, and specifically noted that the movie was not to be construed as referring to the Petitioner. Our colleagues find that the overall impact of the above documents and film "overstepped the bounds of permissive campaigning." For these reasons, they would set the election aside. We disagree, and find, in accord with the recommendations of the Regional Director, that the documents and film in question were noncoercive in nature and fall into the category of permissible campaign propaganda. As to the documents, our colleagues are specifically concerned with the two letters covering the subject matter summarized under (1), (2), and (3) above." The first letter was distributed on December 1, 1961, almost 3 weeks before the election. The second letter bears no date, and when it was u I further believe that the increasing use of such films, purportedly documentary but in fact contrived , should be more extensively scrutinized in Board proceedings or before other appropriate and competent tribunals . Facts of record relating to the instant situa- tion suggest the strong likelihood of validity to generalized assertions that the film in question is much more false and misleading in fact that we can presently find within the confines of data now available to us as a matter of public record. 13 Exhibits A and B. Exhibits C through I contain excerpts from the Petitioner's con- stitution and reprints of articles from leading Chicago newspapers adversely describing the practices of the Petitioner and its officials . No specific exceptions are made by the Petitioner as to the accuracy and the truth of the excerpts and reprints in question. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributed is only speculative. However, the timing of the documents in any case appears to be of little import. Although our colleagues talk of viewing "total context," here again they are, in fact, applying a standard different from that which they profess to adopt.16 Thus, here again, certain selected segments of the documents in question are considered in the abstract without regard to the total election cam- paign of the parties of which the whole documents were an integral part; and, on the basis of this sort of an approach, broad and un- warranted conclusions are drawn which will not withstand careful scrutiny. For example, in the letter dealing with possible adverse effects of unionization upon both the employees and the Employer, we are unable to conclude that they "generated a sense of fear" in the employees, or promised that "rewards" would be forthcoming only if the Union were defeated. In the letter of December 1, 1961, the Employer said, and we quote the pertinent passages of the letter in full context : The union wants to organize the plant for the purpose of ob- taining monthly dues. The union contract makes everyone join the union. If you refuse to join, or if you do not pay your dues, the union will have you fired. This is not job security, it is union security. The dues are at least $5.00 per month or $60.00 per year, plus fines, assessments, and political contributions, plus any loss of wages due to strikes. A union does more to take away in- dividual freedom than it does to protect it. The union is interested in its own security and to make sure the dues rolls in every month. Your rights as an individual are lost when there is a union con- tract. With a union, they decide whether your complaints can be presented to the Company. You may feel you have a just com- plaint, but unless it would benefit the union, your complaint may never be considered. A union contract sets up a rigid set of rules and regulations which must be followed. We believe we have a good team in this plant. The time study survey proved that as a whole, the people at Mason's put forth good effort. By the same token, I person- ally hope you see the willingness and effort on the part of the new management to make this even more of a team, where the employees are more fully informed and where we are all working together to further improve the position of this Company. When a union comes in, a wedge is driven between the employees and the company by the outside union leader, who never worked at the company, and who doesn't know anything about the com- 16 See, e g., Lord Baltimore Press, 142 NLRB 328; Oak Manufacturing Company, 141 NLRB 1323. CARL T. MASON CO., INC. 489 pany's problems. The union brings a contract with rigid rules and regulations which must be followed. All individual attention is then lost since the contract controls. Neither union nor com- pany is allowed to deviate from these rigid rules. In the undated letter, the Employer said, and again we quote the pertinent passages in full: What would you do if you were to learn on short notice that you would be out of work because of a strike? -you would not be eligible for unemployment insurance -no other company would hire you because you might be only a temporary employee -you would be unable to get a loan -your savings would be depleted What would you do? What could you do? Let's hope this never happens here at Masons; but it is what happens when the union calls a strike. The strike is the key to the union's power. Strikes can be caused by a union making rash and unreasonable demands on the com- pany, which could put a company out of business and you out of a job. The union may call a strike to back up promises in order to save face with employees. Strikes can also be caused by having an irresponsible "hot head" as a union leader. Don't be fooled ! If the union leader wants a strike, he will get his way. Employees will be shamed, coerced, and pushed into approving the union leader's right to call a strike. Have you ever stopped to think of how much a strike would cost you? If the union called a strike for a 5¢ per hour raise and if the strike lasted one week; it would take you 45 to 50 weeks to make up the wages you lost by striking. If the strike lasted four weeks, it would take you four to five years to make up the loss. In the 116 day steel strike of last year, it will take the employees 10 to 20 years to make up what they lost. What would happen to our customers if there were a strike. Ours is a business of making deadlines, of delivering material to fit the timing of customers sales campaigns. How long do you think we would keep our customers if we failed on delivery and they knew no work was being done due to a strike? Cancelled orders can mean customers permanently lost. If there are no customers, there is no business-this certainly is no job security. But what happens to a company during a strike. Well, some companies that have been making a profit and have been strong for many years, can weather a strike even though the employees 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can't, but not so with Masons. You know from our meetings the conditions of this company a year ago at the time of the change. It was on the verge of collapse. Taxes unpaid, overdrawn at the bank, sales way down and the many problems as discussed with you in our meetings. A lot of progress has been made since then. Sales are up-ali.iost double. The old taxes are nearly paid off. We have gone from last year's $91,000 loss to profits in some months this year. But for the year, we are trading dollars and this is not enough to correct the problems carried over from the past. More money for everyone has to come from somewhere. A union adds nothing to the company's ability to pay higher wages. If there is no profit, there is nothing with which to pay extra wages. There is only one answer to increased prosperity for everyone at Masons and that is for the company to make a pro fit. And the only way to profit is increased production. There is no other answer. As we read the foregoing passages, it appears to us that all the Employer was doing was to inform the employees in a noncoercive manner that unionizatic n may well entail changes in employee- employer relationships, a ad that it may carry risks and responsibili- ties as well as benefits. Certainly, employees are entitled to such in- formation if they are to cast an intelligent vote concerning their choice of representatives, and both the courts and the Board in recent cases have, in fact, found similar expressions of opinion by employers permissible.17 As for the film "And Women Must Weep," the basis for objection 2 which our colleagues would find as additional ground to bolster their position, we have previously indicated our position on this matter in our dissent to Plochman and Harrison (140 NLRB 130). We are obliged to observe however, that Members Fanning and Brown in the Plochman case set the election aside at least in part because the film was shown on the eve of the election. Here, of course, the movie was shown 12 days before the day of the election, and its impact, if any, on the basis of their own rationale, would appear to be inconsequential.ie For the above reasons, we would, therefore, sustain the Regional Director and certify the results of the election. 17 See, e.g., N.L.R.B. v. Threads, Inc , 308 F. 2d 1 (C A. 4) ; Union Carbide v. N.L.R.B., 310 F. 2d 844 (C.A. 6) ; Seven-Up Bottling Co, 140 NLRB 611; Allen-Morrison Sign Co., Inc, 138 NLRB 73; Decorated Products, Inc., 140 NLRB 1383; Arch Beverage Corporation, 140 NLRB 1385. 'e Chairman McCulloch, regarding objection 2, consistent with his opinion in Plochman and Harrison, holds that the film by itself is an independent basis for overturning this election regardless of timing He relies upon alleged misrepresentations involved therein. We are unable to find in either the objection in question , the Regional Director's report, or the exceptions thereto any issues of misrepresentations raised by the parties.