Metropolitan Life Insurance Company

METROPOLITAN LIFE INSURANCE COMPANY Metropolitan Life Insurance Company and Insur- ance Workers International Union, AFL-CIO, Petitioner. Case 17-RC-9135 March 22, 1983 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered an objection to an election held on November 21, 1980,1 and the Hearing Officer's Report on Objections With Find- ings and Recommendations recommending disposi- tion of same. The Board reviewed the record in light of the exceptions and brief, and hereby adopts the Hearing Officer's findings and recommenda- tions only to the extent they are consistent here- with. The essential facts are not in dispute. Following the November 21, 1980,2 election in the agreed- upon appropriate unit,3 the Petitioner filed a timely objection to the election with the Regional Direc- tor for Region 17 of the Board. The objection al- leged the following: On November 19, 1980, Mr. Lawarence [sic] Wilkerson, Regional Sales Manager, conduct- ed a mandatory meeting of all the Sales Repre- sentatives in the district. Mr. Wilkerson made misleading and inaccurate statements concern- ing union policy on finding members. He stated that they would fine members as well as non-members. The Union did not have time to rebut his statements. On December 4, the Regional Director ordered that a hearing be held on the issues raised by the objection. The hearing was held on December 16, and on December 31 the Hearing Officer issued his report. The Employer is a New York corporation en- gaged in the sale of life insurance. The instant peti- The election was conducted pursuant to a Stipulation of Certification Upon Consent Election. The tally was: 5 for, and 10 against, the Petition- er; there were no challenged ballots. s Unless otherwise noted, all dates refer to 1980. s The unit is: All sales representatives, formerly known as Metropolitan Insurance Consultants, of the Employer attached to its Jefferson City, Missouri and its detached offices located in Columbia, Missouri, and Moberly, Missouri, but EXCLUDING canvassing, regular and office account agents, independent agents, retired sales representatives, district sales managers, sales managers, cashiers, clerical employees, secretaries, professional employees, guards, watchmen and supervisors as defined in the Act. tion involves a unit of all sales representatives at- tached to the Employer's Jefferson City, Missouri, district office. Although there are approximately 17 unit employees attached to the Jefferson City dis- trict office, only about 4 of those 17 have offices at that location. The remaining 13 agents maintain of- fices in other cities and towns within the State of Missouri, including Columbia, Moberly, Fulton, Washington, Marshall, and Montgomery City. Some of these localities are located up to approxi- mately 100 miles from the Jefferson City district office. On November 19, 2 days prior to the election, the Employer's regional sales manager, Lawrence Wilkerson, conducted a mandatory meeting for all sales representatives attached to the Jefferson City district. The meeting was divided into two seg- ments. The first session was open to all of the Em- ployer's sales personnel and apparently dealt with business-related matters. The second session, how- ever, was open to unit employees only and con- cerned the upcoming representation election. The Hearing Officer found that during the course of the second session Wilkerson announced that sales rep- resentatives within the unit who elected to contin- ue working for the Employer during a strike could be fined by the Petitioner for doing so, even if they were not members of the Union. Citing N.L.R.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO [International Paper Box Machine Ca], 409 U.S. 213, 217 (1972), the Hearing Officer prop- erly found that Wilkerson's statement was a mis- representation of law. He further found that the statement in issue could reasonably have had a sig- nificant impact on the election and was made at a time which did not provide the Petitioner an ade- quate opportunity to make an effective reply.4 Ac- cordingly, the Hearing Officer recommended that the election be set aside and a second election di- rected, citing General Knit of California, 239 NLRB 619 (1978), and Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962). Although we agree with the finding that Wilkerson's statement was a misrepre- sentation of law, for the reasons stated below we disagree with the Hearing Officer's recommenda- tion to set aside the election. General Knit and Hollywood Ceramics recently were overruled in Midland National Life Insurance Company, 263 NLRB 127 (1982). In that case, we resolved to return to the sound rule announced in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), under which we no longer probe into the 4 In view of the result reached herein, we find it unnecessary to decide whether the Petitioner had an adequate opportunity to rebut Wilkerson's statement 266 NLRB No. 91 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truth or falsity of the parties' campaign statements and do not set aside elections on the basis of mis- leading campaign propaganda. In essence, our recent holdings 5 establish that we will not set aside an election because of the substance of any repre- sentation, but will do so where a party uses forged documents which render the voters unable to rec- ognize the campaign propaganda for what it is. Thus, it is not the substance of the representation which we will examine but the manner in which that representation was made. When made in a de- ceptive manner which renders employees unable to evaluate the propaganda for what it is, such as in cases of forgery, we will set aside the election. But where the representation is not made in a deceptive manner, we will not probe into the truth or falsity of any alleged misrepresentation. Unlike Midland National and Shopping Kart, which involved alleged misrepresentations of fact, the instant case involves an alleged misrepresenta- tion of law. However, we believe that the same policy considerations and rationale which formed the basis for our decision to return to the rule an- nounced in Shopping Kart are equally applicable to situations involving misrepresentations of law. That a misrepresentation of law may involve a proffer of an allegedly "official" Board or court interpreta- tion of law, or even an allegedly "official" law of this country, does not change the result. As we ex- plained in Riveredge Hospital,6 in such cases all that is present is one party's representation of what the law provides. It is the party, and not the Board, court, or law, speaking. As such, we deem that em- ployees can recognize and evaluate such propagan- da for what it is, and discount it. Applying the foregoing principles to the instant case," there is no claim that Wilkerson's statement 6 In addition to Midland National, see Affiliated Midwest Hospital Incor- porated, d/b/a Riveredge Hospital, 264 NLRB 1094 (1982). 6 Supra. I Midland National, supra, citing Corn Products Refining Company, 58 NLRB 1441, 1442 (1944). Our dissenting colleague finds a significant difference between misrep- resentations of law and misrepresentations of fact. His distinction is based on employees' general unfamiliarity with the law and their concern about their legal rights as well as the assertion of the party making the misrep- resentation of special knowledge about the law. None of these facts, how- ever, serves to make a misrepresentation of law less obviously campaign propaganda than misrepresentations of fact. Misrepresentations typically involve matters about which employees have little or no knowledge and about which they are particularly concerned. And as often as not the misrepresentations are made by persons who assert some special knowl- edge. The crucial point remains that the employees know that an election campaign is underway and, in our view, are sufficiently mature to take the parties' statements as campaign propaganda which may be true or false or somewhere in between. Accordingly, there is no persuasive basis for drawing the distinction which the dissent urges upon us, and we de- cline to do so. I See Midland Natrional, supra, where we stated that in accordance with our usual practice, we would apply the holding of that case "to all pending cases in whatever stage." was made in a deceptive manner or involved the use of a forged document, and our review of the record convinces us that there is no basis for any such claim. Indeed, the record reveals that the al- leged misrepresentation was made in the course of an oral presentation and as part of the Employer's preelection campaign propaganda. We thus find that the employees readily could evaluate Wilker- son's statements for what they were-propaganda. Accordingly, we shall overrule the Petitioner's ob- jection and, as the Petitioner did not receive a ma- jority of the valid votes cast in the election, certify the results of the election. 9 CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Insurance Workers International Union, AFL-CIO, and that said labor organization is not the exclusive representative of all of the employees, in the unit involved herein, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER JENKINS, dissenting: Contrary to my colleagues, I would adopt the Hearing Officer's recommendation to sustain the Petitioner's objection and to direct a second elec- tion on the basis of the Employer's misrepresenta- tion of law. Beyond my disagreement with the majority's de- cision to return to the flawed doctrine of Shopping Kart,'° and apart from the administrative conven- ience provided by a mechanistic application of that case, there can be no reason to countenance egre- gious misstatements of law such as that made by the Employer in this case. The majority's claim that employees can recognize misrepresentations of law as being mere campaign propaganda is pure sophistry. The particular misrepresentation of law involved here was a patent misstatement of the em- ployees' Section 7 right to refrain from engaging in union activities without fear of reprisal." Rank- and-file employees, unschooled in the intricacies of Federal labor laws, cannot be assumed to recognize the falsity of statements purporting to be recitations of applicable law.'1 This particularly is true where, 9 We see no reason to express an opinion on the hypothetical misrepre- sentations advanced by the dissent. We note, however, that in Midland National we cited General Shoe Corporation, 77 NLRB 124 (1948), and approved the "laboratory conditions" standard enunciated in that case. I' See Member Fanning's and my dissents in Midland National Life In- surance Company, 263 NLRB 127 (1982), and Cffiliated Midwest Hospital Incorporated, d/b/a Riveredge Hospital, 264 NLRB 1094 (1982). "l See, generally, NLR.B. v. Granite State Joint Board, Textile Work- ers Union of Amenrica, Local 1029, AFL-CIO [International Paper Box Ma- chine Co.], 409 U.S. 213 (1972). " See, e.g., Jensen Sound Laboratories, 258 NLRB 1314, 1317 (1981). 508 METROPOLITAN LIFE INSURANCE COMPANY as here, the misrepresentation of law is made by one who, as the Employer's spokesman, is held out by the Employer to be knowledgeable in matters concerning the impact and effects of possible unionization. Under such circumstances, it is appar- ent that employees would attach added significance to statements made by such a spokesman concern- ing members' and nonmembers' legal rights and ob- ligations in strike situations. Even were I to accept the principles underlying the now-resurrected Shopping Kart doctrine, which I do not, I would not find that legal and factual misrepresentations should be governed by the same standards. My colleagues in the majority make the quantum leap of assuming that, since they find that employees can recognize and evaluate factual mis- statements, employees similarly can recognize and evaluate legal misstatements. However, I submit that the majority's assumption is not well founded in fact or in law. What employee reasonably would not be con- cerned about the provisions of applicable law con- cerning matters of utmost importance such as em- ployee rights in strike situations? And what em- ployee reasonably would not consider how that law affected him or could affect him? My col- leagues ignore these considerations in the name of prompt finality of election results, the ease and pre- dictability of a per se rule, and a fear of factual dis- agreements between the Board and the courts. While these considerations have certain facial appeal, none withstands scrutiny when weighed against the overwhelming purpose of the Act and the reason for which this Board exists-to preserve employees' free choice and guarantee their exercise of the rights granted them by the Act without fear of reprisal. This Board has the responsibility to keep a party from exerting undue influence on the electorate. The Act requires that an election be conducted in such a manner as to be a true and re- liable indicator of employee sentiment. A Board- conducted election is not a contest between em- ployer and union. Rather, its sole purpose is to give employees, through the secret-ballot process, an opportunity to make an informed and uncoerced decision as to whether they wish to be represented by a labor organization. These principles are not newly erected labor law theories-the Board has recognized them for over 35 years.'3 Yet my col- leagues, with a callous sweep of their pen and not- withstanding their protestations to the contrary, brush all of this aside. I can regard my colleagues in the majority only as having adopted a "hear-no- evil, see-no-evil" approach to their quasi-judicial responsibilities. The inevitable result of the majority's holding in the instant case, together with the holdings of a Board majority in Midland National and Riveredge Hospital, is to invite chicanery to take a rightful place in election campaign propaganda. Today the majority places its imprimatur on an employer's stating that this country's labor laws permit a union to fine nonmembers for crossing a picket line. Pre- dictably, the same result would obtain despite mis- representations of the law relating to strikers' rein- statement and recall rights, or misrepresentations of law concerning voting eligibility standards, or a misrepresentation of law that employees' wages and benefits must, by law, increase if the unit opts for representation by a labor organization. Quite conceivably, the majority holding in this case even would permit representing to employees that pick- eting activities are unprotected by the Act, or that employees are entitled by law to receive the normal wages from their employer for time spent attending union meetings or engaging in strike ac- tions. None of these statements, standing alone, in- volves forged documents or contains threats viola- tive of Section 8 of the Act. Accordingly, under the majority's approach those statements are unob- jectionable, though wrong as a matter of law. Unfortunately, we do not live in an Eden or Shangri-La. Absent reasonable regulation of cam- paign propaganda to prevent outright lies concern- ing material provisions of law, I fear that only the employees will suffer while each party attempts to gain some small advantage by making wildly inac- curate statements of law concerning whichever subjects are of greatest import to the electorate. In my view, only by sheerest happenstance could any election held under such conditions reflect the true desires of a majority of employees. Therefore, I dissent. ] See General Shoe Corporation, 77 NLRB 124 (1948). 509