Dubie-Clark Co., Inc.

DUBIE-CLARK CO., INCORPORATED Dubie-Clark Co., Incorporated and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local #503, Petitioner. Case 10-RC-9563 February 25, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, a secret ballot election was con- ducted on June 22, 1973, by the Regional Director of Region 10 among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 100 eligible voters, 97 cast valid ballots, of which 50 were for, and 47 against, the Petitioner. There were no challenged ballots. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regula- tions and Statements of Procedure, Series 8, as amended, the Regional Director conducted an investigation and on July 12, 1973, issued and duly served on the parties his Report on Objections recommending that the objections be overruled and a certification of representative be issued. Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief. 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 and claims to represent certain employees of the Employ- er. 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 in- cluding truckdrivers draftsmen and leadmen employed by the Employer at its Toccoa, Georgia operation, but excluding all office clerical em- ployees, professional employees, guards, the drafting supervisor and all other supervisors as defined in the Act. 217 5. The Board has considered the objections, the Regional Director's report, the Employer's excep- tions and brief, and the entire record , and finds merit in the exceptions for the following reasons: On May 1, 1973, the Petitioner filed an unfair labor practice charge in Case 10-CA-10134 alleging violations of Section 8(a)(1) of the Act by the Employer. The parties subsequently entered into an informal settle- ment agreement which contained a nonadmission clause. After approval of the settlement on June 7, 1973, the Employer posted a "Notice to Employees" which clearly stated in large print that it was "posted pursuant to a Settlement Agreement approved by a Regional Director of the National Labor Relations Board." On June 19, 1973, which was 3 days prior to the election, the Petitioner sent a leaflet to all employees stating, inter alia: I am sure you have seen the OFFICIAL NOTICE POSTED under the requirement of the Law where the National Labor Relations Board, An Agency of the United States Government, has found that Dubie-Clark has violated your rights under the Law. There are five (5) WE WILL NOT statements. . . . Read them carefully be- cause they are very serious violations of your rights in a free and secret ballot election without fear or intimidation. Yes . . . EMPLOYEE DAY at your plant was postponed by these violations . . . DO YOU THINK THE CHARGES THE UNION FILED WERE ERRONEOUS AND WITHOUT MER- IT?. . . We feel that you know the merit of the violations. The statement in the Petitioner's leaflet that the Board "has found that Dubie-Clark has violated your rights under the Law" is inaccurate and misleading. In actuality, the Board has made no such finding, or rendered such a decision. In view of the informal settlement agreement, the Board has neither ruled upon the merits of the allegations made in the unfair labor practice charge nor issued any decision in that case finding that the Employer has violated the law. In Mallory Capacitor Company, 161 NLRB 1510, a document was distributed by the union therein which conveyed the impression that the Board had found that the employer had violated the Act when, in fact, only allegations of unfair labor practices had been made in a complaint issued by the General Counsel. We said: We do not agree with the Regional Director's conclusion that the circulated document did not 209 NLRB No. 21 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfere with a fair election. The Board is necessarily concerned with the protection of its procedures designed to provide fair elections. It particulary looks with disfavor upon any attempt to misuse its processes to secure partisan advan- tage. And, plainly, we cannot sanction the reproduction of a Board document which is altered for campaign purposes and used under circumstances where it is reasonably calculated to mislead employees into believing that the Board has judged the Employer to have violated Federal law whereas, in truth, it has only made allegations which have yet to be proved. We shall set aside the election and order a new one. [Footnote omitted.] In other cases, we have consistently found similar efforts to misrepresent Board documents and thereby to secure partisan advantage to be grounds for setting aside elections. Allied Electric Products, Inc., 109 NLRB 1270; Rebmar Inc., 173 NLRB 1434,i and Thiokol Chemical Corporation, 202 NLRB 434. Our dissenting colleague has attempted to distin- guish this case from our decision in Mallory, supra, on the grounds that Mallory involved only the circulation of a physically altered complaint. We do not agree. In Mallory the Petitioner distributed its own document to the employees which recited only portions of the General Counsel's complaint. It also contained a substantial misstatement of fact con- cerning the Board's position with respect to the alleged 8(a)(1) and (3) violations of the Act. The document distributed in Mallory stated "Uncle Sam says Mallory Bosses Guilty," when in fact the Regional Director had only issued a complaint and notice of hearing to determine in a trial before an Administrative Law Judge whether there had been a violation of the Act. In the present case the Petitioner misstated and mischaractenzed the legal effects of an informal settlement agreement approved by the Regional Director when the Petitioner stated that the Board "has found that Dubie-Clark has violated your rights under the law." In actuality, no such violation was found and no Board decision was issued against Respondent. We, therefore, find that not only the actual physical alteration of a Board document, but any substantial mischaracterization or misuse of such a document for partisan election purposes is to be considered a serious misrepresenta- tion. As we stated in Rebmar, supra, "our concern is not with the substance of the material . . . but with the I Member Jenkins does not rely on Rebmar 2 Here "common sense and expertise . lead to the conclusion that even if the allegedly offending statement might technically be within a purist definition of 'misrepresentation ,' " it is not "a significant one nor one impact such a partisan message . . . might have on the freedom of choice of the voter." For this reason we must guard against any intrusion, such as the physical alteration or substantial mischaracterization of a Board document, which might place the Board's neutrality in question during the preelection cam- paign period. Moreover, the Board has traditionally encouraged the settlement of disputes rather than prolonged litigation of unfair labor practice allegations. We continue to support this policy. If we were to condone the misuse or misrepresentation of settle- ment agreements for partisan election purposes, we would discourage parties from voluntarily entering into such settlements. Accordingly, for the above cited reasons, we shall set aside the election and order that a new one be held. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the election held on June 22, 1973, be, and it hereby is, set aside and that Case 10-RC-9563 be, and it hereby is, remand- ed to the Regional Director for Region 10 for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER PENELLO, dissenting: Contrary to my colleagues, I would adopt the Regional Director's Report on Objections, overrule the Employer's objections in their entirety, and certify the Petitioner. I agree fully with the Regional Director that there was, in fact, no material misrepre- sentation here,2 particularly in view of the fact that the notice referred to by the Petitioner's circular had already been posted in the plant for 12 days. As stated by the majority herein, the posted notice clearly stated in large print that it was "posted pursuant to a Settlement Agreement. . . ." Under these circumstances, the Regional Director was fully warranted in concluding that the employees were in a position to evaluate the Petitioner's campaign litera- ture. Thus, even if viewed as a misrepresentation under Hollywood Ceramics,3 I would find no.warrant in this case for concluding that the Petitioner's conduct herein could possibly have interfered with the calling either for a hearing or for disregarding the secret ballot made by the voters." 3 Modme Manufacturing Company, 203 NLRB No. 77 Hollywood Ceramics Company, Inc, 140 NLRB 221 DUBIE-CLARK CO., INCORPORATED employees' free choice. However, as I indicated in footnote 6 of Modine Mfg. Co.,4 I would not, in any event, adhere to the Hollywood Ceramics rule, and in an appropriate -future case I shall express my views on this in detail. But this not such a case because, although the Regional Director so treated it and found the conduct insufficient to interfere with the election, my colleagues apparently view the single innocuous statement in the Union's circular-that the Board "has found that Dubie-Clark has violated your rights under the Law"-as even more serious; i.e., as such a falsity that it amounts to misuse of the Board's processes or a misrepresentation likely to mislead employees into believing that the Board favors one choice or another. For, although they have not specifically so characterized that statement, and they refer to the misrepresentation of settlement agreements, their rationale for setting aside the election in this case is that "we have consistently found similar efforts to misrepresent Board docu- ments and thereby to secure partisan advantage to be grounds for setting aside elections" and they con- clude that this case involves a "substantial mischar- acterization"5 of a Board document which "might place the Board's neutrality in question." Any conclusion that this is a misrepresentation of Board documents or misleading as to the Board's possible endorsement of one of the choices on the ballot is totally unwarranted. Examination of the cases cited in the majority opinion readily discloses that they were concerned with the misleading effects of the alteration of Board documents. Thus, they involved circulating a seriously altered Board com- plaint (Mallory Capacitor); adding a partisan message to an official Board document so that it appeared to come from the Board, thereby misleading the employees into thinking that the Board endorsed one of the parties to the election (Rebmar, Inc.); and circulating a marked copy of a sample ballot bearing an additional printed line reading "Do not mark it any other way-Mark `YES' box only," thus indicat- ing to the voters that the Board endorsed that choice (Allied Electric Products). To suggest that the present case is at all analogous to any of these cases is to stretch them beyond all reason or logic-the quota- tion from Mallory Capacitor is taken out of context and its application here is totally unjustified. The one other case cited by my colleagues, Thiokol Chemical Corporation, was concerned with the 4 Supra 5 I note that the majority has apparently now adopted a term or standard, new in this context, which is as yet undefined and serves merely to complicate this aspect further 6 In this connection , I note that it is the general policy of the General Counsel to recommend and accept a settlement agreement where the investigation reveals evidence that would warrant issuance of a complaint. I 219 employer's circulation of an outdated copy of a Board informational release which contained state- ments of outdated rules concerning reinstatement rights of economic strikers. In that case Members Fanning and Jenkins found that the employer had thereby interfered with the election, but Chairman Miller dissented vigorously in language which is equally applicable here: 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... . The action complained of herein was, at most a misrepresentation. It did not involve a major departure from the truth 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. Further- more. 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 . . . had such a tendency to disturb the election results here as to justify our setting aside the election. Similarly here, there was nothing added to a Board document, but merely a statement, at most, that the Board had found that the Employer violated the Act whereas, in fact, it had not done so.6 Further, here, the employees were or should have been well aware of the settlement of the unfair labor practice charge since, as noted previously, the very notice to which the Union referred had been posted for almost 2 weeks prior to the Union's statement which is under consideration. In sum, it is my view that the majority herein must be viewed as unwarrantedly conjuring spectres of discouraging the settlement of unfair labor practice cases 7 while they give only lip service to the principle that the Board does not police the preelection propaganda of the parties and will not set aside an election unless there is conduct which clearly puts in jeopardy the integrity of our election.8 As stated earlier, I would adopt the Regional Director's report and certify the Petitioner. would assume, therefore, that the Regional Director had determined that a prima Jade case existed of a violation by the employer. 4 I am, of course , in full accord with my colleagues as to the desirability of encouraging such settlements. R See the lengthy discussion by Chairman Miller and Members Fanning and Jenkins in Modine Manufacturing Company, supra