Thiokol Chemical Corp.

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thiokol Chemical Corporation, Hall-Way Plant and Sheet Metal Workers International Association, Local Union No. 60, AFL-CIO, Petitioner. Case 19-RC-6150 March 15, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was conducted among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 35 eligible voters, 34 cast valid ballots, of which 10 were for the Petitioner, and 23 against. There was one challenged ballot. Thereafter, the Petitioner filed timely objec- tions to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on September 11, 1972, issued and served on the parties his Report on Objections, recommending that the Petitioner's objections be sustained and that the election held on May 18, 1972, be set aside, and that a direction of second election issue. Thereafter, the Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the following employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer at its South Yellowstone and Sunnyside Road, Idaho Falls, Idaho plant, including the time and inventory clerk and the order and material clerk, excluding office clericals, profes- sional employees and supervisors as defined in the Act. 5. The Petitioner's objection relates solely to a document mailed by the' Employer to the unit employees on May 9, 1972, in which the Employer reproduced the official seal of the Board and certain portions of a Board publication entitled "A Lay- man's Guide to Basic Law Under the National Labor Relations Act" (1962 edition). The Employer on the same date also mailed to all unit employees a 2-page letter together with an enclosure entitled "Here's the Real Story About Strikes" and a second enclosure entitled "Get the Real Facts." On the "Layman's Guide" the Employer added "Here's What the U.S. Govt. Has to Say." The Employer added at the bottom "Thiokol-Hall," thus appropriating an offi- cial Board document for partisan purposes. We agree with the Regional Director that the Board should not and cannot allow its. official documents which are designed to provide complete and unbiased information to employees, employers, and the public to be appropriated by any party in a partisan manner. Here the Employer used the outdated 1962 Board document to misstate the presently existing law as to the rights of economic strikers. Thus, under the cover of implied Board sanction, the Employer misled its employees by creating a false and misleading view as to the employees' reinstatement rights in the event of an economic strike. This action we believe was a perversion of the purposes of this document and operated to compromise the neutrality of the Board. The gravamen of the Employer's objectionable conduct as to the misuse of the Board's 1962 document was that it chose to reprint the outdated 1962 document rather than the 1970 document which accurately expresses the current state of the law as to the reemployment rights of economic strikers. We think the Chairman's reliance on . the Union's "opportunity to correct" the misrepresentation is misplaced. It is questionable whether any partisan in a campaign can credibly and effectively correct a misstatement, buttressed by official documents, about the legal principles applied by the public agency administering the statute. In any event, we deem it more salutary not to attempt any such evaluation. Accordingly, the Board has considered the Peti- tioner's objection, the Regional Director's report, and the Employer's exception and, for the reasons stated above, adopts the Regional Director's find- ings, conclusions, and recommendations. We do not agree with our dissenting colleague that our decision herein constitutes per se grounds for setting aside the election because of the Employer's use of outdated Board material. In this case, as in all previous cases involving the misuse of Board docu- ments or materials, the alleged misuse has been 202 NLRB No. 57 THIOKOL CHEMICAL CORP. weighed together with all other relevant facts as to the possible impact upon the rights of employees to a free and untrammeled election. Nor do we agree with our dissenting colleague that "the action complained of herein was, at most, a misrepresentation." The Employer in its campaign laid great stress on the possibility of strikes and that in the event of a strike "its business would go to its competitors." Thus, the employees' reemployment rights in the event of a strike were an important issue during the campaign. The Employer's use of the 1962 document in this context served to reinforce its campaign theme that in the event of an economic strike they would lose their reemployment rights, a result sanctioned by the United States Government. In the circumstances of this case, we are compelled to find that the Employer's misuse of the document compels us to direct that a second election be held. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the recommendation of the Regional Director that the election held on May 18, 1972, be set aside and hereby orders that the election conducted on May 18, 1972, be, and it hereby is, set aside and that Case 19-RC-6105 be, and it hereby is, remanded to the Regional Director for Region 19 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN MILLER, dissenting: I cannot agree that the Employer's use of the outdated excerpt from "Layman's Guide to Basic Law Under the National Labor Relations Act" (1962 1 See Rebmar, Inc., 173 NLRB 1434. 2 As the Regional Director found, accompanying the Employer 's May 9, 1972, letter (and the disputed portion of the 1962 "Layman's Guide") was a leaflet stating that "Strikers ... do not have a right to their job after the strike if they have been permanetly replaced, and their replacements are still working." (Emphasis supplied.] The Employer also asserts that in a speech 435 edition) constituted per se grounds for setting aside the election. This is not a case where a party has added extraneous propaganda to a Board document under conditions tending to suggest either directly or indirectly to the voters that this Government Agency endorses a particular choice. Cf. Allied Electric Products, Inc., 109 NLRB 1270. Instead, we are here concerned with an employer's action in using outdated Board material so as, it is alleged, to understate the rights employees would have as replaced economic strikers. It is true that "the Board has a responsibility to inform employees fully of their rights and privileges under the Act and to conduct elections in the atmosphere conducive to a determination of the uninhibited preference of employees." I To that end, the Board is called upon from time to time to take measures to assure that its efforts in this regard are not subject to improper interference. This is not to say, however, that an election should be set aside in every case involving a misuse of Board documents or literature. The action complained of herein was, at most, a misrepresentation. It did not involve a major departure from the truth 2 and occurred some 9 days before the election. Thus the Union had ample opportunity to correct any misstatement of the law which may have been involved. Furthermore, it is highly speculative, in my view, for this Board to conclude that a failure by the Employer to make clear a refinement in the governing law as to the rights of replaced strikers in some hypothetical strike which might occur at some future date had such a tendency to disturb the election results here as to justify our setting aside the election. In these circumstances, I would certify the results of the election. the day before the election, the Employer read to the employees relevant portions of the newer 1970 "Layman's Guide." Thus, it is at least arguable that the record as a whole will not support a finding that the Board materials were used in such a way as to convey a misrepresentation of the state of the law.