J. Ray McDermott & Co., Inc.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Ray McDermott & Co., Inc. and International As. sociation of Professional Divers , affiliated with Dis- trict 2, MEBA, AFL-CIO, Petitioner. Case 15-RC-5361 December 13, 1974 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN, MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 15 on April 18, 1974, a mail ballot election was conducted in the unit heretofore found appropriate. After the ballots were opened and counted on July 19, the parties were furnished with a tally of ballots which showed that, of approximately 78 eligible voters, 40 cast votes for Peti- tioner and 33 cast ballots against; there were 3 chal- lenged ballots which were insufficient in number to affect the results of the election. Thereafter, the Em- ployer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director investigated the objections. On September 11, 1974, the Regional Director issued a Supplemental Decision and Certification of Represen- tative in which he overruled the Employer's objections in their entirety. Thereafter, the Employer, in accord- ance with Section 102.67 of the Board's Rules and Regulations, filed a timely request for review of the Regional Director's Supplemental Decision, contend- ing that he erred in overruling Objection 2 which al- leged in essence that the Petitioner's reproduction of the Regional Director's telegram in a partisan leaflet distributed to employees created the impression of the Board's bias in favor of Petitioner which affected the outcome of the election. By telegraphic order dated October 22, 1974, the National Labor Relations Board granted the Em- ployer's request for review with respect to Objection 2. 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 issue under review and makes the following findings: On or about June 6, 1974, the same day that mail ballots were sent out in this election, Petitioner mailed a copy of its monthly newsletter "Life Line" to, among others, all those eligible voters of this Employer whose names appeared on the Excelsior list submitted by the Employer. Included in the newsletter was a one-page insert dated June 6, 1974, containing a heading of "Ex- tra!" and the name of the Petitioner. The first several paragraphs of the insert dealt with the Petitioner's elec- tion "victory" at another named employer's plant and discussed the outcome of that vote. Beneath this recita- tion was a statement that an election at yet another named employer's plant was postponed indefinitely due to charges filed by the Petitioner. Following this state- ment was a reprint of the official telegram sent by the Regional Director (the same one directing an election herein) informing the parties in the latter case of the indefinite postponement of the election due to the filing of charges by the Union without the filing of a request to proceed. The reprinted telegram included, near the bottom of the leaflet, the name and title of the Regional Director and the address of the Regional Office. At the bottom of the leaflet, under the reprinted telegram, was stated, "A GREAT DAY FOR THE I.A.P.D. KEEP THE FAITH AND VOTE 'YES' WHEN YOU RECEIVE YOUR BALLOT!!!" In overruling the objection, the Regional Director found, contrary to the Employer's contention, that the reproduction of the telegram would not reasonably be interpreted as an endorsement of the Petitioner and that, assuming it might have cast some doubt in the minds of voters regarding the partiality of the Board, such doubt would be dispelled by the language on the Board's notice of election. We disagree. In our opinion this case is controlled by Rebmar, Inc., 173 NLRB 1434 (1968), where we held as objec- tionable the reproduction of an official Board docu- ment to which was added a "personal partisan message that may be interpreted by the employee as endorse- ment by the Board of one of the parties to the election. " In the instant case Petitioner failed affirmatively to disassociate by format or explanatory statements its partisan remarks from the signed name of the Regional Director as set forth in the reproduced telegram. Given this circumstance and the fact that the insert was in letter form, with the Regional Director's name appear- ing at the virtual end, we find that the employees could reasonably have believed that some or all of the parti- san statements in the insert constituted an endorsement of the Petitioner by the Regional Director. Accordingly, we hereby sustain Objection 2 and we shall set aside the election and order that a new one be held.' I Member Penello in joining the majority distinguishes this case from Dubie-Clark Co., Incorporated, 209 NLRB 217 (1974), where the petitioner circulated a leaflet which stated that the Board had found that the employer had violated employee rights. There, the leaflet referred to the terms of an informal settlement agreement, notice of which had already been posted in the plant for 12 days prior to circulation of the leaflet. Member Penello believed that, in those circumstances, the Regional Director was fully war- ranted in concluding that the employees were in a position to evaluate the petitioner's campaign literature, whereas in the instant case the employees (Continued) 215 NLRB No. 104 J. RAY McDERMOTT & CO., INC. 571 ORDER It is hereby ordered that the election herein before held be, and it hereby is, set aside. [Direction of Second Election and Excelsior footnote omitted from publication.] CHAIRMAN MILLER, dissenting: I would have denied review of the Regional Direc- tor's finding to the contrary and, accordingly, dissent herein. were not in a position to differentiate between those comments emanating from the Petitioner itself and those emanating from the Regional Director.