Ereno Lewis

ERENO LEWIS 239 Ereno Lewis and Local 542, International Union of Operating Engineers, AFL-CIO, Petitioner. Case 4-RC-1 1061 April 1, 1975 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO - Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Di- rector for Region 4 on July 24, 1974, an election by secret ballot was conducted on August 16, 1974, under his direction and supervision among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 14 eligible vot- ers and 14 cast ballots, of which 7 were for, and 7 against, the Petitioner. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election, of which all but one were subsequently with- drawn. Pursuant to Section 102.69 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investigation and, on September 27, 1974, issued and duly served on the parties his Report and Recommen- dations on Objection to Election attached-hereto in pertinent part. In his report, the Acting Regional Di- rector recommended that the objection be sustained and a new election directed. Thereafter, the Employer filed a timely exception to the Acting Regional Direc- tor's report. 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. Upon the entire record in this case 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 labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation 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 the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All operators, mechanics, helpers, and laborers, who work on or with heavy construction equip- ment of Ereno Lewis, Harrisburg, Pennsylvania, but excluding all office clerical employees, guards, and supervisors as defined in the Act. 5. The Board has considered the entire record in this proceeding, including the Petitioner's objection, the Acting Regional Director's report, the Employer's ex- ception and brief, and the Petitioner's answering brief, and hereby adopts the Acting Regional Director's find- ings, conclusions, and recommendations only to the extent consistent herewith. The facts are not in dispute. On the morning of the election, the Employer distributed to its employees a leaflet on its letterhead, which stated: The Company's information is that as of August 15, 1974, union dues in Local 542, International Union of Operating Engineers AFL-CIO were $9.00 per month. We understand that, in addition, initiation fees are $104.00. If this is correct, the enclosed "sample check" represents what your pay check for this week would be if the same union dues and initiation fees were deducted from your earnings for this pay-week. Further, union assessments are not deductedfrom wages but must be paid directly to the Union from your own pocket. Thus, you can see that from this check how much your pay is shrunk by union membership . . . which membership, in your case, does not come very cheap. THIS IS SOMETHING TO THINK ABOUT' (Your actual paycheck is stapled to this notice.) At the same time a "sample check" was given each employee, showing a deduction of $113.00 for "Union ded." from a weekly gross of $200. Although the above amount of monthly dues was correctly reported, in fact, the Union's initiation fee is only $60 rather than $104. However, the Petitioner's constitution and bylaws require, in addition to the initiation fee of $60, the payment of 3 months' dues ($27) and a death benefit fund contribution of $20 for a total of $107; but this amount is payable over a 60-day period from the date of joining the Union. On the basis of these facts, the Acting Regional Director concluded that the Employer's propaganda material substantially misrepresented both the amount of the initiation fee and the manner in which it must be paid in that the leaflet gave no indication of a 60-day period for that purpose. Accordingly, he recommended that the objec- tion be sustained and a new election directed. Members Jenkins and Kennedy adopt the Acting Regional Director's recommendation that the election 217 NLRB No. 45 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be set aside. Member Kennedy finds that the Em- ployer's statement that Petitioner's initiation fee was $104 when in fact it was only $60 constituted a material misrepresentation on a matter that the employees could not evaluate and at a time which precluded an effective reply. The Trane Company (Clarksville Manufacturing Division), 137 NLRB 1506 (1962). Member Kennedy does not believe that the misrepresentation is excused because approximately the same figure can be reached by adding the 3 months' dues (for which employees re- ceive credits) and a death benefit contribution to the $60 initiation fee for a total of $107. Member Jenkins, although in agreement with the Acting Regional Director's recommendation, does not adopt his entire rationale. Contrary-to the Acting Re- gional Director, Member Jenkins does not believe that the Employer misstated the amount of Petitioner's initiation fees. Although that fee was $60 rather than $104, the Union required the simultaneous payment of 3 months' dues and a death benefit fund contribution fora total of $107. Thus, the total payment required is, in fact, $3 more than stated by the Employer. In these circumstances, Member Jenkins does not find that the Employer, by attributing the entire sum to payment of the Petitioner's initiation fees, rather than identifying the component amounts, engaged in conduct which could mislead employees and interfere with their free choice. However, Member Jenkins agrees with the Acting Regional Director's conclusion that the Employer's statement, "If this is correct, the enclosed `sample check' represents what your pay check for this week would be if the same union dues and initiation fees were deducted from your earnings for this pay-week" and the "sample check" itself, reflecting a $113 deduction for union dues and initiation fees, constituted a material misrepresentation. For the Employer thereby imparted to its employees the wholly erroneous impres- sion that in the event of unionization the entire amount of the Petitioner's initiation fees would be taken out of one paycheck so as to reduce their earnings for that week by more than 50 percent. As the Acting Regional Director noted, the impact of a specimen payroll check which graphically but improperly reduces an em- ployee's weekly pay by more than half is such that employees could only be struck by the fact that union dues and initiation fees would account for so large a deduction at one time. Furthermore, as indicated by the Acting Regional Director, the Employer's distribu- tion of the propaganda material on the morning of the election effectively precluded the Petitioner from point, ing out to employees that these fees are payable over a 60-day period. For all these reasons, Member Jenkins agrees that the Employer's conduct overstepped the bounds of legitimate electioneering and interfered with the employees' freedom of choice. Accordingly, we hereby sustain the Petitioner's ob- jection and set aside the election, and we shall direct that a second election be conducted. [Direction of Second Election omitted from publication.]' MEMBER PENELLO, dissenting: In the hope that my words will not fall on deaf ears, I take this opportunity to urge once more that this Board give Hollywood Ceramics a decent burial and return to its earlier, intrinsically sounder policy of not inquiring into the truth or falsity of the parties' cam- paign statements. "The repetition of a catchword," Justices Holmes and Cardozo warned long ago, "can hold analysis in fetters for fifty years and more."3 This case removes all doubt that, after 13 years of Hollywood Ceramics, "misrepresentation" has indeed become a substitute for reasoned analysis. It is true that the Hollywood Ceramics approach is of long standing and its underlying basis, i.e., The Gummed Products Company, 112 NLRB 1092 (1955), is becoming hoary with age. But that does not mean that the holdings of those cases are "engraved in stone" or that they represent immutable law. On the contrary, the Board's clear authority to overrule those holdings has been recognized by the courts and the Board itself. For example, the Fifth Circuit has stated in the follow- ing emphatic language that the "laboratory conditions" standard,' which Hollywood Ceramics is assertedly promoting, is binding upon the Board and the courts only until such time as the Board chooses to change it:s The Board, not the Courts, adopted as the meas- ure of election fairness the "laboratory condi- tions" standard . . . . This Court has previously held that, where the Board has promulgated" a standard governing conduct under the LMRA, "(s)uch policies are controlling until the Board announces a change and its reasons for the change." [Footnotes and citations omitted.]" 16 The Board has been criticized for insisting on its ideal "laboratory conditions" standard. The decision on which standard will best effectuate the Act is a determination to be made initially by the Board. But until it indicates otherwise, it is bound, in election objection cases, by its current "laboratory conditions" test 1 [Excelsior In omitted from publication] 2 Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962) 3 Cardozo, "Mr Justice Holmes," 44 Harv. L. Rev. 682, 689 (1931). 4 See General Shoe Corporation, 77 NLRB 124 (1948). 5 Home Town Foods, Inc, d/b/a Foremost Dairies of the South v. N.L.R B. 416 F 2d 392, 399 (C.A 5, 1969). ERENO LEWIS And the Board has, in the past, modified its approach and application of analogous rules for the conduct of elections.' Most significantly, the United States Supreme Court has long recognized that it is the Board's function to establish policies and procedures to safeguard the con- duct of representation elections' and this would neces- sarily include the authority to revise or modify princi- ples previously adopted. The Court's recent decision in N.L.R.B. v. J. Weingarten, Ina, 420 U.S. 251 (1975), lends further support to this view. In Weingarten, the Court held that the Board had the authority to overrule its prior decisions interpreting Section 7 of the Act and, in so holding, the Court stated that stare decisis plays a more limited role in the administrative process, as compared to the judicial process:' We agree that its earlier precedents do not im- pair the validity of the Board's construction ... . The use by an administrative agency of the evolu- tional approach is particularly fitting. To hold that the Board's earlier decisions froze the develop- ment of this important aspect of the national labor law would misconceive the nature of administra- tive decision making. "`Cumulative experience' begets understanding and insight by which judg- ments . . . are validated or qualified or in- validated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process." [Citations omitted.] Although Weingarten involved a change in the Board's interpretation of the statute, the Court's comments are at least as applicable, if not more so, to a change in the Board's practices and procedures relating to the super- vision of campaign and election conduct inasmuch as those procedures are purely administrative in nature and "not in fulfillment of a direct statutory command i.9 In my separate opinion in Medical Ancillary Services,` I set forth my own views concerning the need for the Board to exercise its authority and revert to its pre-Gummed Products holdings that elections 6 See,, e g., NVF Company, Hartwell Division, 210 NLRB 663 (1974) (Members Fanning and Jenkins dissenting but not on the basis of lack of authority), modifying the interpretation of Peoples Drug Stores, Inc. and Peoples Service Drug Stores, 119 NLRB 634 (1957) 7 N.LR B. v A J. Tower Company, 329 U.S. 324 (1946). B 420 U S. at 265 9 Modine Manufacturing Company, 203 NLRB 527 (1973), enfd 500 F.2d 914 (C.A. 8, 1974). This view of the Board's function under Sec 9 has been endorsed by the courts. XL R.B. v Olson Bodies, Inc., 420 F.2d 1187, 1189 (C.A. 2, 1970), cert. denied 401 U S 954 (1971). "The conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not inter- fere save for the most glaring discrimination or abuse " 10 Medical Ancillary Services, Inc., 212 NLRB 582 (1974) 241 should be set aside only, upon a showing of deliberate deception which renders the voters unable to recognize the campaign propaganda for what it is. In that opin- ion, I also cited and quoted at considerable length from certain scholars of the subject who have expressed simi- lar views." Recently Judge Feinberg of the Second Circuit, in a dissenting opinion,"Z added his voice to those who are critical of the current approach of the Board and the courts. He dissented there because, in his view, the court erred, inter alia, in "forget[ting] that a representation election, like any experiment in derlioc- racy, is conducted in the hurly-burly of the real world, where puffing, ambiguity and rhetoric occur as part of the election process and are routinely discounted" and "[b]ecause the majority opinion unnecessarily under- mines the finality of representation elections and is based upon unrealistic assumptions regarding the effect of a single oral statement by a union organizer. . . ." Judge Feinberg, noting that "union organizers on the stump, under the pressures of time, election fervor and strongly held economic views, characteristically do not choose their words with the care of judges in their chambers," concluded as follows:13 The union or non-union status of a proposed bar- gaining unit should not be subjected to protracted litigation before the Board and in the courts be- cause of a single oral statement, made in the give- and-take of an organizational meeting, apparently not deliberately false, and misleading only when one postulates a very low level of employee eco- nomic sophistication. Judge Feinberg's opinion also cited recent studies which found that campaign propaganda has little effect on election results and that voter choices are deter- mined largely by the degree of one's satisfaction with employment conditions and general attitude toward 11 Id at fn 22 and related text. 12 Henderson Trumbull Supply Corporation v. N.LR.B., 501 F.2d 1224, 1231, 1233 (CA 2, 1974) 13 Similarly, despite the adoption of a "laboratory conditions" standard, the Board has long recognized that preelection conduct must be evaluated in the context of the realities of industrial life See, e g , Owens-Corning Fiberglas Corporation, 179 NLRB 219, 223 (1969), in which a'panel of the Board consisting of former Chairman McCulloch and Members Fanning and Jenkins stated: Although attempting to establish ideal conditions insofar as possible, we acknowledge that actual facts must be considered in light of realistic standards of human conduct, and that "elections must be appraised realistically and practically, and should not be judged agamst theoreti- cally ideal, but nevertheless artificial, standards." In considering stand- ards of human conduct, "we are not unmindful of the fact that the `laboratory' for election purposes is usually an industrial plant where vigorous campaigning and discussion normally take place, and where isolated deviations from the above-mentioned standard will sometimes arise, notwithstanding the best directed effort to prevent their occur- rence " [Footnotes and citations omitted.] 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions as shaped by previous work exprience and the union status of relatives and close friends.14 The Board's continued refusal to recognize these studies, and the implications they hold for Board policy in this area, is a prime example of mindless repetition of the "misrepresentation" catchword where logic would lead to a different result. Turning to the instant case, one is immediately struck by the fact that there is no majority opinion, only a "majority result." For, my colleagues hold only that the election must be set aside and are unable to agree on exactly which of two statements misled the employees. I find, for the reasons stated below, that neither statement is objectionable under the Hollywood Ceramics rule. The net result in regard to each state- ment alleged to be a "misrepresentation" is a holding by different majorities of this panel that it could not have interfered with the employees' free choice. Thus, Hollywood Ceramics has produced the ultimate in ab- surd conclusions-setting an election aside in the ab- sence of any substantial misrepresentation. "Analysis" is not merely in fetters; in this case it has been mortally wounded. Examination of the varying rationales of my col- leagues demonstrates the invalidity of the conclusion that the Employer's propaganda contained the kind of misrepresentation condemned by the Board in Holly- wood Ceramics. The Acting Regional Director appears to have concluded that the Employer's preelection propaganda contained two misrepresentations; first, that it substantially misstated the Petitioner's initiation fee, which is $60 not $104 as reported by the Employer, and second, that it failed to inform employees that they had 60 days within which to pay whatever sum was due. Member Kennedy concurs only in the finding that the Employer's initiation fee statement constituted a material misrepresentation. Unlike Member Kennedy, however, Member Jenkings states that he does not rely on the first "misrepresentation" but does find that the failure to set forth the 60-day period warrants setting aside the election. I must agree with Member Jenkins as to the first finding of the Acting Regional Director. As Member Jenkins convincingly points out, the Employer actually understated by $3 the total payment required of a new member, because the Petitioner's constitution and bylaws also require the simultaneous payment of 3 months' dues ($27) and a death benefit contribution of $20, for a total of $107. As Board Members, our task would be greatly simplified, and as attorneys we would all be happier, if, instead of stating that "we understand that . . . initiation fees are $104," the Employer had said "we understand that the Union's constitution and 14 E g, Brotslaw, "Attitude of Retail Workers Toward Union Organiza- tion," 18 Lab. L. J. 149 (1967) bylaws require the payment of the sum of $107 by new members, said sum consisting of an initiation fee ($60), 3 months' dues ($27), and a death benefit contribution ($20)." However, "such ivory tower hopes to not com- port with the realities."" To hold, as does Member Kennedy, that this election must be run anew because the Employer merely stated the total fees required of a new union member, instead of identifying the compo- nent parts of the amount to be paid, is to demand "absolute precision of statement" which even the Board, in Hollywood Ceramics, recognized as being nei- ther "attainable in an election campaign, nor . . . ex- pected by the employees. ,16 Inasmuch as Member Jenkins and I agree there was no misrepresentation as to amount, the only ground for setting this election aside that remains is the Em- ployer's failure to indicate that the required fees were payable over a 60-day period. But, only Member Jen- kins relies on this basis and it is indeed a slender, tenu- ous one, at best. 17 Although the Employer did not specifically assert that the required payments would in fact have to be deducted at one time, it did distribute the weekly wages in two checks, one a "sample check" showing a deduc- tion for "Union ded.," and state in the accompanying leaflet: If this [amount of $104] is correct, the enclosed "sample check" represents what your. pay check for this week would be if the same union dues and initiation fees were deducted from your earnings for this pay-week. As I read this sentence, the Employer at no time said or implied that the entire sum must be paid at one time. But even if it did so, to conclude that this requires that the election be set aside, one must assume that the employees, could not construe this statement for what it was, an attempt to bring forcibly to the employees' attention the total amount they would be required to pay if they joined the Union. And this in turn requires the evaluation of employees' intelligence and ability to understand the English language as exceedingly low. Further, Member Jenkins leaps from the finding that 15 -(Dissenting opinion in National Mobile Homes, a division of National Homes Corporation, t/a Sportscraft Homes, 186 NLRB 891, 892 (1970). 16 140 NLRB at 223 Inasmuch as the Employer did not falsely represent union membership as being more costly than it actually is, The Trane Com- pany (Clarksville Manufacturing Division), 137 NLRB 1506 (1962), on which the Acting Regional Director and Member Kennedy rely, is clearly inapposite. I note in passing that the plurality opinion in that case (one Member agreed with the results but found it unnecessary to reach the issue in question and two Members dissented) has been subject to severe criti- cism See Williams, Janus, and Huhn, "NLRB Regulation of Election Con- duct," at pp 30-32, Industrial Research Unit of the Wharton School, Uni- versity of Pennsylvania (1974), Bok, "The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act," 78 Harv L Rev 38, 86, 90 (1964) 17 In fact, Member Jenkins characterizes this only as creating an "errone- ous impression " ERENO LEWIS 243 this statement created an "erroneous impression" or was a "misrepresentation" to the conclusion that the election must be set aside," without any evaluation19 as to whether or why the alleged misre- presentation is "likely to have had a real impact on the election"" and with no indication that this subject had been an an issue in the campaign. Finally, under Hollywood Ceramics the Board considers as a factor the matter of "whether the party making the statement possesses intimate knowledge of the subject matter so that the employees sought to be persuaded may be expected to attach added significance to its assertion."" But here, contrary to the Acting Re- gional Director's rationale which Member Jenkins adopts, it seems manifest that the employees would realize than the Employer was not the authoritative source on such matters as the time allowed for payment of Petitioner's fees. This appears even more likely from the fact that the Employer used such phrases as "the Company's information," "we understand," and "if this is correct," which further served to put the em- ployees on notice that the Employer did not possess intimate knowledge of the subject. Therefore, it is in- conceivable to me that the employees would attach much, if any, weight to this and I cannot agree that it had the significance which Member Jenkins attaches to it. To conclude either as a matter of principle or on the basis of the facts that either of the statements contained in the Employer's propaganda material was reasonably likely to have swayed the employees in casting their ballots in the election is, to me, beyond all reason. It is entirely inconsistent with the views of the scholars that voters in representation election, like political election,22 cast their ballots on the basis of a wide var- iety of factors, including both rational and emotional 18 In this connection, it is worthwhile to note Professor Bok's admonition that, "as a general rule, it will be difficult to assert with any confidence that an election has been won or lost on the basis of remarks that are ambiguous rather than plainly inaccurate Statements that are unclear are unlikely to make a vivid impression on the employee, surrounded as he is by a barrage of assertions from both sides. And those that do interpret such statements in a misleading fashion may well be just the employees, referred to by voting analysts, who are only grasping for reasons to support a decision already reached on other grounds " Bok, supra at 91 19 See Aaron, "Labor Relations Law" in "Challenges to Collective Bar- gaining," 113, 128 (L Ulman ed. 1967) "As Professor Bok and others have so convincingly demonstrated, the Board has indulged in some uncommonly silly and completely unverified assumptions that various forms of speech or conduct will or will not interfere with the employee's free choice of bargain- ing agent." 20 Hollywood Ceramics Company, Inc, 140 NLRB at 224. 21 Id. at 224, fn 10 The courts of appeals have also interpreted Hollywood Ceramics as embodying a special knowledge test See, e.g, N.LR B. v Millard Metal Service Center, Inc., 472 F 2d 647 (C.A. 1, 1973); Bausch & Lomb Incorporated v N.LR B 451 F.2d 873 (C A 2,197 1), N.L.R B. v Southern Foods, Inc, 434 F 2d 717 (C A. 5, 1970); United Steelworkers of America, AFL-CIO v NL R.B., 393 F 2d 661 (C.A D.C, 1968) 22 This analogy between representation elections and political elections was drawn by the United States Supreme Court as long ago as 1946 in NL R.B. v A J Tower Company, supra. considerations and particularly their everyday experi- ences in the real world. And, in fact, such a conclusion is contrary to the holdings of two different majorities of this panel. Nevertheless, this election is set aside. But aside from the anomalous result in the instant case, I urge again that the Board reconsider and over- rule Hollywood Ceramics. Experience in application of that case has revealed it is not employees who need rescue from their gullibility; it is the Board which needs rescue from its own misguided paternalism. Accord- ingly, I would reverse the Acting Regional Director's conclusion and certify the results of this election. APPENDIX The remaining Objection is based on the undisputed fact that on the morning of the election, Employer distributed to employees a leaflet (Exhibit A) setting forth its understanding of the Union's dues ($9.00 per month) and initiation fees ($104.00). At the same time a "sample check"-" (Exhibit B)-was given each employee, showing a deduction of $113.00 for "Union ded." from a weekly gross of $200.00. Investigation discloses that although the amount of monthly dues was correctly reported, the Union's initiation fee is only $60.00 rather than $104.00. Peti- tioner's Constitution and By-Laws require the payment of the initiation fee ($60.00), three months dues ($27.- 00) and a death benefit fund payment of $20.00 for a total of $107.00. However, this amount is payable over a 60 day period from the date of joining the Union and is paid directly by the employee rather than by payroll deduction. Thus, in addition to misstating the initiation fee quite substantially, Employer's statement, "If this is correct, the enclosed `sample check' represents what your pay check for this week would be if the same union dues and initiation fees were deducted from your earnings for this pay-week" constitutes a major misre- presentation because there is no indication of a 60 day period in which to make the required payments. In- stead, employees can only be struck by the fact that more than 50% of a week' s earnings is to be deducted from their pay for union dues and initiation fees. Employer justifies its position by a reliance on the Board's rationale in Associated Lerner Shops, 207 NLRB No. 18, contending that there were no factual misrepresentations since its statements were preceded by "We understand" and "If this is correct" thus in- dicating the possibility of inaccuracy which employees could clearly evaluate as campaign propaganda. I find this reasoning unpersuasive. In Associated Lerner, the Board's dismissal was based on the fact that the objected-to literature clearly stated that the wages and benefits were contract proposals and, "Further- more, each fringe benefit listed is followed by the com- 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment that it is to be paid or will be put into effect, thus indicating additionally that these were proposals rather than representations as to the Atlanta wage rate." Ac- cordingly, the Board concluded that employees would reasonably have construed the letter only as campaign propaganda. Here, Employer's prefacing phrases do not lessen the impact of a specimen check which graph- ically but improperly reduces an employee's weekly pay by more than 50%. Thus, I find Associated Lerner inapposite to the instant circumstances and the same conclusion cannot be drawn thereform. In The Trane Company, 137 NLRB 1506, the Board set aside an election where the Employer on the eve of the election incorrectly claimed that the Union's monthly dues were $5.00 instead of $4.00 stating, "If the Employer had publicized these facts in the form used several days before the election , the Petitioner could have correctly pointed out to employees that its dues obligation was $4 and $5 per month . . . We do not believe that employees were in a position correctly to have evaluated Employer's misstatements. We hold that regardless of whether the misstatements were will- ful or inadvertent, their inclusion in propaganda material distributed to employees by supervisors im- mediately before the election seriously impeded a deter- mination of the employees ' choice of a collective-bar- gaining representative." Also see National Mobile Homes, 186 NLRB 891, fn. 3, and cases cited therein. It is clear from the Tally of Ballots that a shift in one vote would have changed the outcome of the election. In view of the misrepresentations made by Employer in Exhibits "A" and "B" and the timing thereof, and in view of established Board precedent , I find and con- clude that Employer's conduct exceeded the limits of legitimate propaganda and lowered the standards of campaigning to a level which impaired the free and untrammeled expression of choice by the employees herein. Accordingly, I find and conclude that the Ob- jection raises substantial and material issues with re- spect to the election and I shall recommend it be sus- tained and a new election directed.