Cascade Corp.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cascade Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and its Local Union No. 1689. Case 9-CA-5683 August 22, 1973 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 19, 1973, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision I in this proceeding. Thereafter, Charging Party filed excep- tions and a supporting brief and Respondent filed an answering brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: On Au- gust 4, 1971, the National Labor Relations Board issued a Decision and Order i in which it found that Cascade Corpo- ration, herein called the Company or Respondent, had vio- lated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by its refusal to bargain with the above-named Union, herein called UAW, as the representa- tive of its employees in an appropriate unit. Accordingly, the Board ordered Respondent to cease and desist from engaging in such activities and to take certain affirmative action designed to remedy the unfair labor practices. There- after, the Respondent filed a petition for review of the Board's Order with the United States Court of Appeals for the Sixth Circuit, and the General Counsel of the Board filed a cross-petition seeking enforcement of the Board's Order. In its Decision,' dated August 24, 1972, the court remand- ed the case to the Board with directions that a hearing be conducted on certain issues specified by the court. Pursuant thereto, the Board issued an Order on November 8, 1972, reopening the record and directing a hearing before an Ad- ministrative Law Judge for the purpose of receiving evi- dence in accordance with the court's remand. I heard this matter on February 12, 1973. My findings and conclusions are based on the entire re- cord, my observation of the demeanor of the witnesses,3 and the oral argument of counsel for the Respondent and the Charging Party. Before setting out these findings and con- clusions I shall briefly recite the background to this pro- ceeding and, in particular, the Decisions of the Board and court. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that certification of the Charging Party be set aside and the complaint herein be, and it hereby is, dismissed in its entirety. 1 On August 4, 1971, the Board issued its original Decision and Order herein (192 NLRB 533) finding that Respondent had violated Sec 8(a)(5) of the Act Thereafter on August 24, 1972, the United States Court of Appeals for the Sixth circuit issued its opinion (466 F 2d 748) remanding the case to the Board On November 8, 1972, the Board, by Executive Secretary Order, reopened the record and directed a hearing for the purpose of receiving evidence in accordance with the court's remand 2 We sustain the Administrative Law Judge 's dismissal of the complaint in its entirety only to the extent that it is based on his underlying findings that the Union's "Vance circular" (I) was a forgery, (2) materially misrepresented the wage rates of assemblers at the Employer 's Portland plant , and (3) as such , affected the results of the election We conclude that these findings conform to the law of the case under the court of appeals remand We find it unnecessary to reach , and therefore do not pass on, the Administrative Law Judge's further finding that the Union materially misrepresented that the Portland employees had been represented by an independent union Member Penello would rely solely on the forgery, which he regards as sufficient to justify setting aside the election, and therefore would not find it necessary to pass on the remaining issues I BACKGROUND AND THE BOARD'S DECISION The Company, a hydraulic lift manufacturer, operates a plant in Portland, Oregon, and another in Springfield, Ohio. The UAW in 1969 filed a representation petition (Case 9-RC-8371) with the Board seeking to represent a unit of the production and maintenance employees at the Spring- field plant. The Board conducted an election which the UAW won by a vote of 131 to 116 over Employees' Inde- pendent Union of Cascade Corporation, an independent labor organization which had represented these employees for several years. The Company filed with the Board objec- tions to certain preelection conduct engaged in by the UAW alleging that it unfairly affected the outcome of the election. These objections included the claim that the UAW "caused substantial and material misrepresentations of fact to be made in circulars distributed to employees immediately prior to the election." The only circular now in issue, distn- 192 NLRB 533 2 Cascade Corporation v N L R B, 466 F.2d 748 (C A 6). 3 Respondent was the only party to produce witnesses I was impressed by their demeanor Their testimony was not controverted by the General Coun- sel or the Charging Party , and in all significant respects was consistent with each other 205 NLRB No. 103 CASCADE CORPORATION buted the day of the election, reads as follows: MESSAGE FROM PORTLAND, OREGON: Larry Vance, Secretary-Treasurer of Teamster Auto- motive Local 255 reports the following: After many years of Independent Union representa- tion employees in Portland, Oregon voted to affiliate with an International Union. The following is a sample of negotiated rates of pay for certain classifications in the Portland plant: Labor Grade 2-Tool Maker-$3.85 to 4.60 Experimental Mechanic Maintenance Mechanic A which includes such clas- sifications as electrician , etc.-3.50 to 4.25 Labor Grade 4-Assembler A, Automatic Lathe Op- erator A-3.45 to 4.00 Labor Grade 5-Burner-3.25 to 4.00 Labor Grade 6, Grinder-Storekeeper-3.15 to 3.75 Labor Grade 7, Post Drill Operator-2.95 to 3.50 Labor Grade 8, Lift Truck Operator-2.90 to 3.40 Labor Grade 9, Maintenance Helper-2.70 to 3.20 Labor Grade 10, Janitor-2 50 to 3.05 Effective 8-1-70 fifteen (15c) cents will be added to the minimum and maximum of each of the classifications. Effective 8-1-71 fifteen (15c) cents will be added to the minimum and maximum of each of the classifications. An example is a tool maker who would make $4.90 per hour while the janitor would make $3.35 per hour. Teamsters Automotive Local 255 extends fraternal greetings and urges your sincere consideration in join- ing the mainstream of the American labor movement. LARRY VANCE SECRE- TARY-TREASURER TEAMSTERS AUTOMO- TIVE LOCAL 255 12/31/69 In the administrative investigation of the objections con- ducted by the Regional Director of the Board, the Respon- dent claimed that: (1) the reference in the above circular to an independent union was misleading because only a so- called shop committee existed at the Portland plant; (2) the pay of Labor Grade 4 was in error by 10 cents and the UAW unfairly compared only those job classifications that would show it to best advantage; and (3) the "message" was in fact a "forgery." In support of (3), Respondent's counsel submit- ted a sworn affidavit reciting his telephone conversation with Teamsters Official Vance in which the latter stated that he had not written the message or authorized the use of his 639 name in it. In rebuttal the UAW asserted, in an unsworn statement, that the message was based on a telephone con- versation between Vance and C. J. Hyde, a Columbus, Ohio, UAW official, in which Vance offered his coopera- tion in the campaign. The Regional Director of the Board, in his Report on Objections, concluded that the reference to an independent union was a "distinction without a differ- ence," that the 10-cent error was quickly corrected by the UAW, and that the circular itself was based on information supplied by Vance in the Hyde phone call (as reported by the UAW) and on Vance's assurance that he would be "happy to help" with the UAW campaign. Accordingly, the Regional Director held that the circular did not "exceed the bounds of permissible campaign propoganda" and was not "a substantial departure from the truth at a time when the other party could not make an effective reply." The Board on review concluded that the exceptions by Respondent to the Report on Objections raised no material issues warrant- ing reversal of the Regional Director or requiring a hearing, and certified the UAW as the employees' bargaining repre- sentative. The Respondent refused to bargain and in the subsequent unfair labor practice proceeding (192 NLRB 533) the Board foreclosed relitigation of the objection is- sues. II THE COURT'S DECISION The court (Judge Edwards dissenting) concluded that the circular raised issues that could be resolved only by an evidentiary hearing. The court found that the UAW's uns- worn assertion that the circular was prepared "pursuant to Hyde's conversation with Vance," in which Vance allegedly stated that he would be "happy to help" the UAW cam- paign, was in conflict with the Respondent's sworn affidavit that Vance had said he did not write the message or author- ize the use of his name; it found further that even taken at face value the Hyde explanation would not constitute au- thorization for the use of Vance's name. Cascade Corpora- tion v. N.L.R.B., supra, 751. Citing, N.L.R.B. v. Tranoca Chemical Corporation, 303 F.2d 456, 461 (C.A. 1, 1962) the court held that, if deceptive, the circular could well have influenced the election since the Respondent did not have time to reply adequately before the polls were opened. Cas- cade Corporation v. N.L.R.B., supra, 752. Finally, regarding the reference in the circular to an independent union having represented the Portland employees, the court found that the Regional Director's conclusion that there was no impor- tant distinction between an "independent union" and a "shop committee" was an arbitrary conclusion in the ab- sence of supporting facts. Cascade Corporation v. N.L.R.B., supra, 752. The court remanded the case for a hearing to "embrace not only the forgery issue but also the question as to whether any material misrepresentations of fact were made in the circular itself so as to have had an impact upon the election," including the question of whether the Port- land employees were in fact represented by an independent union and, if not, what effect the UAW's contrary assertion had on the election. In directing the remand the court acknowledged that the exceptions to Continued 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III ULTIMATE FINDINGS THE ALLEGATION THAT THE VANCE CIRCULAR WAS MATERIALLY FALSE IN SEVERAL RESPECTS Respondent in support of these contentions. I In Hollywood Ceramics Company, Inc, 140 NLRB 221, 224, the Board summarized its rules with respect to allegedly false campaign materials as follows: We believe that an election should be set aside only where there has been a misrepresentation or other simi- lar campaign trickery, which involves a sumstantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. In assessing the probable impact of a misrepresentation on the voters, the Board considers such factors as the impor- tance of the subject matter misrepresented, whether the em- ployees themselves were in a position properly to evaluate the misrepresentation based on the circumstances sur- rounding the misrepresentation or their own independent knowledge, and whether the speaker "possesses intimate knowledge of the subject matter so that the employees sought to be persuaded may be expected to attach added significance to [the] assertion." Hollywood Ceramics Compa- ny, Inc., supra. The appropriateness of these standards has been recognized by the court. N L. R B. v. Louisville Chair Company, 385 F.2d 922, 927 (C.A. 6, 1967). In considering the Respondent's contention that the Vance circular mis- represents certain matters, I have been guided by the above ground rules and have considered as the law of this case the court's conclusion that, "[t]he distribution [of the Vance circular] was made in the waning minutes before the elec- tion was to begin and there was no opportunity either to properly evaluate the contents of the circular or to check on any statement contained in it." The court, in effect, con- cluded that under the circumstances the Respondent had no reasonable opportunity to make a reply to any false or misleading statements contained in the Vance circular. Cas- cade Corporation v. N. L R. B., supra, 752. The Respondent urges that the Vance circular was mate- rially false in these respects: (1) It created a false impression of the hourly rate of pay received by employees classified as assemblers at the Portland plant under the contract nego- tiated by the Teamsters Union; (2) it omitted the fact that the Portland employees lost profit-sharing benefits when the contract with the Teamsters Union was negotiated; (3) it omitted the fact that there is a difference in the manner in which employees are advanced to better payingjob classifi- cations at the Portland plant as contrasted to Springfield; and (4) the circular alleged that the Portland employees had been represented for years by an "Independent Union" when in fact these employees had not been represented. I shall now set out and discuss the evidence presented by the Regional Director's Report on Objections did not "refer to the Vance circular or proffer specific evidence on the forgery issue," but held that the particular circumstances of the case justified a relaxation of the normal rule requinng specification in objections Cascade Corporation v N L R B , supra, 753 Regarding the contention that the circular created a false impression of the hourly rate of pay received by assemblers at Portland under the Teamsters Union contract, the Re- spondent adduced the following uncontroverted evidence. The circular in its description of a "sample of negotiated rates of pay for certain classifications in the Portland plant" includes, "Labor Grade 4-Assembler A $3.45 to $4.10." The assemblers at Portland and Springfield do the same type of work When the circular was issued the Portland plant employed 18 assemblers, 8 of whom were included within "Labor Grade 4" and 10 in "Labor Grade 7" which pays substantially less than Labor Grade 4. The Springfield plant employed 22 assemblers who under the terms of the contract with the Employees' Independent Union of Cas- cade Corporation were apparently paid at hourly rates of pay below the Portland Labor Grade 4 scale. Respondent contends that the circular was accurate only in a limited sense and gave a substantially incorrect picture. In setting out the wage scale for assemblers at Portland, the circular quoted only one rate, that for the higher paid as- semblers, with no indication of the fact that the majority of the assemblers were lower rated . I agree . The rates set out in the circular for assemblers presented a distorted picture. In my opinion, having undertaken to set out the wage scale for assemblers, the UAW was under an affirmative duty to disclose facts which materially qualified those facts it did assert. By only telling part of the story, the circular created the false impression that the assemblers employed at Port- land were all receiving the "Labor Garde 4" wage scale. As the fourth circuit has observed in another context: To tell less than the whole truth is a well known method of deception; and he who deceives by resorting to such method cannot excuse the deception by relying upon the truthfulness per se of the partial truth by which it has been accomplished. [P. Lorillard Co. v. FTC, 186 F.2d 52, 58 (C.A. 4).] Also, in the context of Board-conducted elections, the Board and the courts have recognized that material omis- sions of fact may be as likely as positive misstatements of fact to materially mislead employees. Bausch & Lomb, Inc., 185 NLRB 262; May Department Stores Co, 174 NLRB 720, 786-787; Ore-Ida Foods, Inc., 160 NLRB 1396, 1399. N. L R. B. v. Tranoca Chemical Corp., supra. Finally, I find that this misrepresentation had the tendency to unfairly influence the election. First, the UAW's misstatement was issued at a time which precluded the Respondent from mak- ing an effective reply. The record does not show that the employees at the Springfield plant had independent knowl- edge of the negotiations in Portland or the situation at Port- land which would have enabled them to evaluate the UAW's statement as campaign propaganda. And, the mate- riality of the misrepresentation is indisputable, for its sub- ject matter-wage rates of assemblers-was an issue of utmost importance to employees and directly affected a substantial number of the electorate. Finally, it is apparent that the employees would be likely to attach added signifi- cance to the UAW's assertions about the Portland negotia- CASCADE CORPORATION tions because the circular expressly stated the information had been secured from the bargaining representative, the Teamsters Union , of the Portland Employees . See N.L.R.B. v. A.G. Pollard Company, 393 F.2d 239, 242 (C.A. 1, 1968). ("In judging the effect of a misrepresentation , the test can- not be whether the speaker in fact had special knowledge, but must be whether the listeners would believe that he had.") In any event, even if the element of special knowl- edge is absent here , it is only "one factor" considered by the Board in evaluating probable impact. Hollywood Ceramics, Inc., supra, 140 NLRB at 224, footnote 10. The presence of the other factors set out above-insufficient time to reply, importance of the subject matter, and lack of independent knowledge on the part of employees-are, I am of the opin- ion, more than ample to support the Respondent 's conten- tionthat the UAW's misrepresentation concerning the rate of pay of assemblers was highly likely to affect the outcome of the election. II Regarding its contentions that the circular omitted the fact that the Portland employees had lost their profit-shar- ing benefits and the fact that the method of promoting unskilled employees at Portland was not as advantageous to employees as the method used in Springfield , the Respon- dent adduced the following undisputed evidence. The Portland employees lost profit-sharing benefits, amounting to about 15 cents per hour when the Teamsters Union negotiated its contract. And, in Portland, promo- tions from unskilled jobs to production jobs are governed by factors such as ability, as well as seniority, whereas in Springfield under the contract of the Employees ' Indepen- dent Union of Cascade Corporation, such promotions are based strictly on seniority . Respondent urges that the failure of the UAW to include these facts in the Vance circular amounts to a misrepresentation . I disagree. The circular neigher expressly or by implication mentions these subjects. The circular did not convey the impression that wage gains at Portland were won without any Teamsters Union conces- sions on other issues . Indeed its silence on the subject of other benefits including profit sharing itself suggests that these might not compare favorably with the benefits at Springfield. Nor, did the circular convey the impression that the manner in which employees were promoted at Portland was as good or better than the system used in Springfield. This matter, as well as profit sharing, was not mentioned, directly or indirectly. In short, I find that the mere omission of these matters, absent any evidence that the omission was calculated to create a false impression of profit sharing and promotions at Portland, does not constitute a material mis- representation of fact sufficient to set aside the election. III In support of its contention that the election must be set aside because the circular alleged that "After many years of Independent Union representation employees in Portland" voted to affiliate with the Teamsters Union, the Company adduced the following undisputed evidence. In 1946 the employees at Portland formed what was 641 known as a shop committee comprised of five employees; one representative from each of the three shifts plus two members at large. The five members of the shop committee were elected by the employees during the lunchbreak. The committee was not a formal organization, it had no consti- tution or bylaws, the committee membership met irregu- larly, and there were no dues. There is no evidence that it reported back to the employees. The primary purpose of the committee was to provide a means of communication between management and the employees. At no time did the shop committee and Compa- ny negotiate or attempt to negotiate a written collective- bargaining agreement or a written agreement on a subject of employment. In fact, the employees' wages and their basic fringe benefits , i.e., vacations, holidays, etc., were uni- laterally determined by the Company based on the contract entered into between the Local Machinist Union and other area employers . However, the committee in its regular monthly meetings with management did discuss employees' complaints concerning working conditions. The record shows that the committee members at these meetings dis- cussed with management complaints from employees about conditions in the plant, including adequate ventilation, heating, safety conditions, and the need for a shower for the employees to use to clean up. In some instances the Company's officials acted favorably with regard to the shop committee's requests and complaints and rejected or com- promised on others. In addition, an agreement was reached with regard to the employees taking one of their paid holi- days on their birthday. The Portland employees at all times regarded this com- mittee as a shop committee and not as an independent union. Thus, on a number of occasions certain employees specifically tried to convince the employees to form a so- called independent union and the employees rejected this idea for the reason that they did not desire to either pay dues or establish bylaws or have regular meetings. However, in 1969 a labor organization named the Cascade Independent Union was formed by employees and appeared on the ballot along with the Teamsters Union and two other unions in the Board-conducted election which resulted in the certification of the Teamsters Union as the representative of the Port- land employees. It is undisputed that the Cascade Indepen- dent Union came into existence in 1969 just prior to the Board election for the purpose of the election and had no connection either as a successor or otherwise to the shop committee. As previously found, the employees at Portland did not consider the shop committee as an independent union. Sim- ilarly, Larry Vance, the official of the Teamsters Union whose message the UAW allegedly communicated in the earlier described circular, testified that he did not consider the shop committee to be an independent union, that the employees in Portland never described it to him as an inde- pendent union, and further testified that he never told the UAW that an independent union had represented the em- ployees in Portland. Finally, prior to the election at the Springfield plant, the plant manager at Springfield and officials of the Employees' Independent Union of Cascade Corporation had pointed out to the Springfield employees that, in contrast to Spring- 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field, the Portland employees were not represented by an independent union.5 Thus, when the Springfield employees read the assertion in the Vance circular which in substance stated that the Portland employees had been represented by an independent union for many years, their reaction was that they had been lied to by the plant manager and the officials of the incumbent independent union. To sum up, the Employees' Independent Union of Cas- cade Corporation had represented the Company's Spring- field employees. It is undisputed that one of the main issues in the election campaign was whether the employees would get better representation from this incumbent independent union or from a National or International affiliated Union such as the UAW. In an effort to convince them to vote out the incumbent independent union, the UAW issued the Vance circular which pointed out that at the Portland plant the Teamsters Union had recently displaced an indepen- dent union which had represented the employees for many years, and that the Teamsters Union had negotiated wage increases. When viewed in its context I am convinced that the disputed paragraph was calculated to convey to the Springfield employees the idea that the so-called indepen- dent union at Portland had negotiated wages on the em- ployees' behalf and that the Teamsters Union in its first negotiations was able to do a better job-illustrated by the rates in the circular-because the Teamsters Union like the UAW and unlike the incumbent independent union was not an independent union. In other words, the main theme re- flected in the circular was that representation by an inde- pendent union such as the incumbent independent union was no substitute for representation by an International Union such as the UAW and that the truth of this was demonstrated by the experience of the employees at the Portland plant. The message, however, was false inasmuch as the "shop committee" at Portland had never represented the employees on matters concerning wages or fringe bene- fits. Not only was the message false, but I further find that it had the tendency to unfairly influence the election for the same reasons as did the misrepresentation over the assem- blers' rates of pay. In reaching this conclusion I have not decided if attributing the name independent union to the shop committee is sufficient by itself to taint the election. Nor have I decided whether the shop committee was a labor organization within the meaning of Section 2(5) of the Act. These questions are not relevant. What is relevant is that the shop committee whether it is called an independent union, a labor organization, or a Union did not negotiate the em- ployees' wages, did not represent them on this matter, and that the UAW in attempting to get votes falsely created the impression that the shop committee had acted as the em- ployees' bargaining representative in the matter of wages. IV ULTIMATE FINDINGS THE FORGERY ISSUE The undisputed facts relating to the issue of whether the Vance circular was a forgery and, if so, whether it had an 5 The employees at the Springfield plant, prior to the UAW certification, had been represented since 1962 by the Employees' Independent Union of Cascade Corporation which had negotiated on their behalf a series of collec- tive-bargaining agreements impact upon the election are as follows. As indicated previ- ously, the Company's employees at the Springfield plant were represented for several years by the Employees' Inde- pendent Union of Cascade Corporation which had negoti- ated contracts covering these employees. The last contract expired on December 1, 1969. Thereafter, this independent union was defeated by the UAW, 131 to 116, in the Board- conducted election held on December 31, 1969. Earlier in 1969 the employees at the Portland plant had voted in the Teamsters Union. A major campaign issue discussed by the employees at Springfield was whether the employees could get better rep- resentation from an independent union such as the incum- bent independent union or from an International Union like the Teamsters Union or the UAW. The incumbent independent union at the end of work on the first shift on December 30, 1969, about 3 p.m., distributed a circular to the employees which stated, in substance, that the employ- ees should vote for the incumbent independent union be- cause it did not make sense to have different International Unions in Portland and Springfield, that if the employees wanted an International Union they should keep the two plants together and vote in the Teamsters Union rather than the UAW. Upon receipt of this circular a number of em- ployees indicated they were impressed by the reasoning. However, employee supporters of the UAW indicated that the UAW would reply the next day, the day of the election. In fact, later that night at a meeting for employees conduct- ed by the UAW the employees were informed by a represen- tative of the UAW that the Teamsters and the UAW belonged to the American Labor Alliance and that a vote for the UAW was a vote for the Teamsters Union and that the Teamsters Union would not cross the UAW picket line. Pointing to the circular issued earlier that day by the incum- bent independent union the UAW representative told the employees "this is junk, it does not mean anything. A vote for the UAW is like a vote for the Teamsters." The next day, the morning of the election which was to start at 8 a.m., the UAW distributed to the employees the Vance circular which stated that Larry Vance, the secretary- treasurer of the Teamsters Union which represented the Portland employees, had sent them a message. The circular, in substance, states that the Teamsters Union after replac- ing the independent union at Portland had negotiated cer- tain favorable rates of pay for the employees and that the Teamsters Union "extends fraternal greetings and urges your sincere consideration in joining the mainstream of the American Labor movement." If there is any doubt that the UAW wanted to convey the fact that this message was from the Teamsters Union and that Vance in his official capacity had authorized the UAW to publicize the message, the doubt is removed by the fact that the circular concludes with Vance's name and title prominently displayed in capi- tal letters .6 The circular, read as a whole, conveys the im- pression that the information contained therein originated 6 Simultaneously, the UAW issued another circular to the employees stat- ing, among other things, that the ALA which included the UAW and Team- sters Union representing the Portland employees extended fraternal greetings to the Springfield employees, that the two unions together represented close to 4 million employees, and told the employees that "joining with us you will find the strength and expert assistance needed to deal with Cascade" CASCADE CORPORATION with Vance and was being directly communicated by him. The Vance circular was distributed to all employees who came to work the morning of the election and, as one em- ployee witness testified, was "the topic of discussion for that morning." In discussing the circular, employees who sup- ported the UAW pointed out that with the combination of the Teamsters Union and the UAW an economic strike would "have the company on its knees" in 3 days. After reading the circular several employees openly expressed the sentiment that since the Teamsters Union had said it was supporting the UAW there was no reason why they should not support the UAW or indicated that they now supported the UAW. Regarding the origin of the Vance circular, Larry Vance testified that UAW Representative Hyde telephoned him and they discussed the contract the Teamsters Union had negotiated at the Portland plant, in particular the portion of the contract relating to wages. Vance also testified that dur- ing the conversation Hyde mentioned the fact that the UAW was engaged in a campaign to organize the Spring- field plant and Vance is sure he wished Hyde good luck or success in the campaign. Vance did not expressly or by implication grant Hyde or anyone else from the UAW per- mission to use his name in connection with the Vance circu- lar. His conversation with Hyde was not for the eyes or ears of employees, but, as Vance testified, it was for Hyde's ears only. Vance whose testimony was undenied impressed me as an honest witness.' To sum up, the Vance circular was a forgery, deliberately designed by the UAW for the purpose of influencing the employees to vote in favor of the UAW. The circular was drafted in a manner calculated to convey the impression and in fact it did convey the impression that if a majority voted for the UAW that the Teamsters Union would sup- port the UAW in the negotiation of a contract. The support of the Teamsters Union was a matter of great importance to the employees in deciding whether to replace the incum- bent independent union with the UAW. Respondent had no opportunity to investigate the authenticity of the Vance circular to reply. In these circumstances, since the Vance circular was a forgery, the employees were deceived and their ability to evaluate the document and its contents was so impaired as to interfere with the employees' free choice to select a bargaining representative. Sylvania Elec. Prods., Inc., 119 NLRB 824, and United Aircraft Corp., 103 NLRB 102. The circular conveying the false impression that it was a direct message from the Teamsters Union pledging sup- port to the UAW involved a matter of substance and of enough importance to the employees to affect materially the votes cast in the election. 7 Hyde is deceased V CONCLUSION 643 The court in remanding this matter directed the Board to determine whether the alleged misrepresentations con- tained in the circular as well as the alleged forgery "had an impact upon the election," particularly "what effect such misstatement had upon the election itself." Cascade Corpo- ration v. N.L.R.B., supra, 754. I have found, as described above, that certain conduct engaged in by the UAW had an impact on the election sufficient to warrant setting the elec- tion aside. In making this determination I have made it on an obJective basis-that is, on whether the alleged miscon- duct would reasonably tend to prevent the holding of a fair and free election-rather than on the subjective statements of the employees as to whether misrepresentation influ- enced them or led them to vote as they did. G.H.R. Foundry Division, et al, 123 NLRB 1707, 1709, and cases here cited at footnote 3; Orleans Manufacturing Co., 120 NLRB 630, 631, footnote 4. See also N. L. R. B. v. Laney & Duke Storage Warehouse Co., Inc., 369 F.2d 859, 864 (C.A. 5, 1966). ("In passing on objections to elections it is for the Board to decide whether the conduct charged reasonably tends to interfere with the voters free choice.") It is not whether the employees were actually or necessarily misled, but only that it is "sufficiently likely that it cannot be told whether they were or not." Baumritter Corporation v. N.L.R.B., 386 F.2d 117, 120 (C.A. 1, 1967). CONCLUSIONS OF LAW 1. Cascade Corporation is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The complaint herein be, and it hereby is, dismissed in its entirety. IT Is HEREBY ORDERED that the Certification of Representa- tive issued on April 28, 1970, in Case 9-RC-8371 be vacat- ed. s In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes