Howard Manufacturing Co., Inc.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Manufacturing Company, Inc. and Southern Missouri-Arkansas District Council, International Ladies' Garment Workers' Union, AFLr-CIO, Peti- tioner. Case 26-RC-4918 July 28, 1975 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 25, 1975, the Acting Regional Director for Region 26 issued a Supplemental Decision and Order in the above-entitled proceeding in which he sustained Petitioner's Objections 4 and 11 to conduct affecting the results of the election , and directed that a second election be conducted.' Thereafter, pur- suant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review of the Acting Regional Director's Supplemental Decision on the grounds, in- ter alia, that he departed from officially reported Board precedent. The Petitioner filed an opposition to the request for review. By telegraphic order dated May 15, 1975, the Na- tional Labor Relations Board granted the request for review and stayed the election pending decision on review.2 Thereafter, the Employer filed a brief on re- view. 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 entire record in this case with respect to the issues under review , includ- ing the Employer's brief on review, and makes the following findings: In sustaining Petitioner's Objection 4, the Acting Regional Director found that in a speech to its em- ployees on the day before the election the Employer erroneously informed the employees that the union cards utilized by the Union during the campaign were membership cards and that those employees who signed would automatically become members in the event of a union victory. He further found such misrepresentation was sub- stantial, as the Employer referred to the Union's i The tally of ballots for the election showed that of approximately 139 eligible voters 108 cast valid ballots, of which 47 were for, and 61 against, the Petitioner. There were 28 challenged ballots and no void ballots The Acting Regional Director sustained 23 challenges, overruled 2, and made no determination with respect to the remaining 3 challenges as they were not determinative. 2 The Petitioner also filed a request for review which was denied by tele- graphic order dated May 15, 1975 constitution to point out the requirements of union membership, including dues, as well as the possibility of being subject to fines and assessments, and con- cluded that the Union had insufficient opportunity to respond. However, we find, in accord with the Employer's contentions, that the employees could evaluate the erroneous interpretation given the cards by the Em- ployer. Thus, the cards on their face did not purport to be membership cards but merely "authorize[d]" the Union to represent the signatory. Employees who signed such cards are presumed to have read them and had an independent basis for evaluating the ac- curacy of the Employer's representations. Moreover, the legal effect of the card was not a matter about which the employees could assume was in the pecu- liar knowledge of the Employer.3 Accordingly, Ob- jection 4 is overruled. Objection I 1 involves a handbill distributed by the Employer about 3 hours before the election, stating, inter alia, "The Labor Board contacted the Union and required the Union to withdraw the charges that would have stopped the election." (Emphasis in the original.) The Acting Regional Director concluded (1) that such statement was a misrepresentation in fact as the Union was not "required" to withdraw the charge but was only put on notice by the Regional Office that the 8(a)(5) allegation in the charges was a "blocking charge" which might result in cancellation of the election, and thereafter the Union elected to delete the 8(a)(5) allegation,4 and (2) that such mis- representation was objectionable as an effort by the Employer to place the Board's neutrality in question. We disagree. While it is not entirely accurate to say that the Union was "required" to withdraw the charges, we are of the opinion that such choice of words in these circumstances had no impact on the election. More- over, contrary to the Acting Regional Director, we do not find that the Employer's characterization of the withdrawal of the charges by the Union here is analogous to a misrepresentation or mischaracteriza- tion of Board documents which the Board has found objectionable.' Nor do we find such conduct placed 3 The Jeffrey Manufacturing Company, Morristown Division, 180 NLRB 701, 702 (1970); Hollywood Ceramics Company, Inc, 140 N LRB 221, 224, fn. 10 (1962). Member Penello agrees with his colleague that the alleged misrepresenta- tion does not warrant setting aside the election, but so finds for the reasons set forth in his dissenting opinions in Ereno Lewis, 217 NLRB No 45 (1975), and Medical Ancillary Services, Inc., 212 NLRB 582 (1974). 4 Employers attorney, who was in contact with the Regional Office, was aware of the "blocking charge" and states he was told that if , upon notice from the Region, the Union would amend out the reference to an 8(a)(5) allegation the election could proceed as scheduled He was later advised of the filing of the second amended charge 5 See. e.g. Dubte-Clark Co., Incorporated, 209 NLRB 217 (1974); Rebmar, Inc, 173 NLRB 1434 (1968). Member Penello agrees with his colleague in the majority that the 219 NLRB No. 138 HOWARD MANUFACTURING COMPANY, INC. the Board's neutrality into question .6 Objection I I is therefore overruled. Accordingly, as both objections have been over- ruled and the, tally of ballots shows that a majority of the valid balks have not been cast in favor of the Petitioner, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Southern Missouri-Ar- kansas District Council, International Ladies' Gar- ment Workers' Union, AFL-CIO, and that said la- bor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. Employer's characterization of the withdrawal of the charges herein is not analogous to a misrepresentation or mischaracterization of Board docu- ments. However, in reaching this result, he does not rely on the Board's decision in Dubie-Clark Co., Incorporated, in which he dissented. 6 Cf. J. Ray McDermott & Co., Inc., 215 NLRB No. 104 (1974). 639 MEMBER FANNING, dissenting: I would affirm the Acting Regional Director's sus- taining of Objection 11. I believe that the Employer's misstatement, distributed via a handbill only 3 hours before the election, was misleading and inaccurate. The Employer, by stating that the Board had "re- quired" the Petitioner to withdraw its charges, seri- ously mischaracterized the actions of both the Board and Petitioner. Petitioner had the right to file its charges. The Board informed Petitioner that its 8(a)(5) charge was a "blocking charge" which might necessitate postponing the election. Thereupon, Peti- tioner elected to amend its charge and delete the 8(a)(5) allegation. By inaccurately stating that the Board "required" withdrawal of the charges, the Em- ployer made a last-minute effort to gain a partisan advantage which might place the Board's neutrality in question. On the basis of Dubie-Clark Co., Inc., 209 NLRB 217 (1974), I would affirm the Acting Re- gional Director's sustaining of Objection II and set aside the election.