Allis-Chalmers Corp.

ALLIS-CHALMERS CORPORATION Allis-Chalmers Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW. Cases 15-CA-5732, 15-CA-6006, and 15-CA-6772 September 30, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 20 and August 7, 1978, the National Labor Relations Board issued its Decisions and Orders' in this proceeding finding that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, by refusing to bargain collectively in good faith with the Charg- ing Party Union as exclusive representative of its employees in an appropriate unit, by terminating 44 members of that unit without reference to the Union regarding the effects thereof, and by making various unilateral changes in the terms and condi- tions of employment of employees in that unit. Ac- cordingly, the Board ordered Respondent to cease and desist therefrom, and to take certain affirma- tive action, including providing a limited backpay award to all unit employees whose terminations were the result of Respondent's unlawful actions. On August 30, 1979, the United States Court of Appeals for the Fifth Circuit issued an opinion 2 en- forcing the Board's Orders insofar as it had found that Respondent had violated Section 8(a)(1) and (5) of the Act, but denying enforcement of the Board's Orders with respect to backpay for em- ployees terminated as a result of Respondent's un- lawful actions. The court found that there was no evidentiary basis for the Administrative Law Judge's statement in the underlying Decision herein that some of the terminations might have been avoided "by resort to transfer and other alterna- tives," which the court interpreted was the basis for the backpay award to the terminated employ- ees.3 Accordingly, the court remanded the pro- 234 NLRB 350 and 237 NLRB 290. Member Penello did not partici- pate in the Board's original Decision and Order, 234 NLRB 350, and his participation herein is limited to a consideration of the questions raised by the court's remand Since the court's opinion constitutes tile law of the case, it is neither necessary nor appropriate for Member Penello to pass upon all other issues that were once part of this case but were resolved by the court of appeals. 2 601 F.2d 870. 1 In addition to the above interpretation of the Administrative Law Judge's rationale for granting a backpay award, the court also noted that the Administrative Law Judge "appeared to require the award of back- pay as a means of ensuring good-faith bargaining" by Respondent 601 F.2d at 875, n. 7. The court, howescr, did not consider this basis for the backpay award, as it found that. at oral argument, the Board apparently abandoned this contention, and characterized the awards as a purely make-whole or compensatory remedy " Ibid 252 NLRB No. 112 ceeding to the Board for a more complete eviden- tiary determination. On November 27, 1979, the Board notified the parties in this proceeding that it had decided to accept this remand from the court. The General Counsel and Respondent thereafter filed statements of position. On December 26, 1979, upon Respondent's peti- tion for rehearing and rehearing en banc, the court modified its original decision 4 in this case, and fur- ther remanded this case to the Board so that it might clarify the basis of its earlier decision to cer- tify the Union as exclusive representative of em- ployees in an appropriate unit, especially as it re- lates to the Board's decision in Formco, Inc., 233 NLRB 61 (1977). On February 20, 1980, the Board notified the parties in this proceeding that it had decided to accept the further remand in this case from the court. Respondent thereafter filed a statement of position. 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. By letter dated July 31, 1980, the Charging Party Union notified the National Labor Relations Board that Respondent and the Charging Party Union had entered into an informal partial settlement agreement with respect to certain matters con- tained in this proceeding. In accord with the terms of this agreement, the Charging Party Union has submitted a request for the withdrawal of charges in Cases 15-CA-6006 and 15-CA-6772 involved herein. Counsel for the General Counsel has not opposed this request. We have considered the pro- posed settlement agreement, have approved it, and hereby grant the Charging Party Union's request for the withdrawal of the above-cited charges. Ac- cordingly, the sole remaining matter in the instant proceeding involves the matters contained in the charge in Case 15-CA-5732, which, in conformity with the terms of the proposed settlement agree- ment, the Charging Party Union has expressly not sought to withdraw. Further, we shall modifiy the outstanding Orders from our original Decisions in these proceedings so that they are consistent with our acceptance of the settlement and the court's remand. The remand with respect to the Formco issue centers on union statements concerning the dis- charge of employee Randy Cook which were made preceding the March 21, 1975, election. Respond- ent contends that the election should have been set 4 hO8 F 2d 1018 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aside, that it was not obligated to bargain with the Union, and that it has not violated Section 8(a)(l) and (5) of the Act, as alleged. A review of the underlying representation case shows that one of the campaign issues therein in- volved the legality of Cook's discharge on Novem- ber 15, 1974. After his discharge, a charge was filed at the Board's Regional Office, alleging that his discharge violated the Act. The Union distrib- uted a handbill in the latter part of November pub- licizing the filing of this charge. The Regional Di- rector for Region 15 thereafter issued a complaint and notice of hearing5 on January 24, 1975, alleg- ing that Cook's discharge was unlawful. On Febru- ary 7, 1975, Respondent sent a memo to its em- ployees stating the following: NLRB HEARING SCHEDULED The NLRB has recently notified the Company that a hearing will be held in Jackson on March 17, 1975, on complaints filed by the UAW over several Company actions. The spe- cific union complaints have to do with the UAW's objections to the discharge of Randall Lee Cook and wage and benefit improvements which the Company has put into effect. We will advise you as to a NLRB decision concerning the UAW's complaints as soon as one is reached. On February 17, 1975, prior to that scheduled hearing, the Union distributed a leaflet to employ- ees informing them that an election would be con- ducted, presenting arguments as to why Respond- ent opposed the Union, urging employees to sign union authorization cards, and announcing a union meeting. One section of the leaflet dealt with the Cook case. It read: COMPANY FOUND GUILTY OF WRONGFUL FIRING Why does the Company feel they can kick folks around in Mississippi? Maybe the Compa- ny thinks they are above the law!! The NLBR [sic] has recommended that Randy Cook be put back to work with full back pay. But the Company is still fighting for their right to fire anyone when ever [sic] they want to. Respondent responded to the Union's leaflet by a memo to employees on the following day, Febru- ary 18, and speeches to groups of employees on March 18 and 19. The memo challenged the Union to answer whether Respondent had "in fact been I The hearing was originally scheduled for March 17, 1975, but was subsequently rescheduled to April 9 and then to April 30, 1975. found guilty by the NLRB of improperly discharg- ing Randall Cook or any other employee," and questioning, "Isn't this union charge still pending and now scheduled for an NLRB hearing on March 17?" The speeches included the following comments: Now the UAW has had a lot to say about the discharge of Randy Cook. The UAW, in one of its handouts, implied the Company had been found guilty in the Cook discharge by the NLRB. This is not true. The Randy Cook case will be tried before an Administrative Law Judge on April 9. I also understand the Union has told some em- ployees that the Randy Cook matter had been settled and he will be coming back to work. That is not true. We have no intention of set- tling the Randy Cook matter because we are in the right and we are confident we will win the case. Subsequent to the March 21, 1975, election, Re- spondent filed objections, alleging that the Union had interfered with the election by making material misrepresentations concerning Board proceedings with regard to Cook's discharge. 6 Thereafter, on August 25, 1975, the Regional Director issued his Report on Objections in which he discussed the merits of the objection relating to Cook's dis- charge. While concluding that the Union did not materially misrepresent the Cook matter, he further found that Respondent had sufficient time and in- formation with which to make, and did make, an effective reply to the Union's statements. He rec- ommended that this objection be overruled, and, on December 30, 1975, the Board, in a Decision not published in the bound volumes, adopted this recommendation and certified the Union.7 Sometime after the certification issued, on Octo- ber 19, 1977, the Board issued its decision in Formco, Inc., 233 NLRB 61. In that case, a com- plaint alleging 8(a)(1) misconduct had been issued against an employer whose employees were in the midst of an election campaign. The parties entered into a settlement agreement containing a nonadmis- sion clause, but before the Regional Director had approved the agreement or taken any further 6 The complaint allegations regarding Cook's discharge were dismissed by the Board on June 18, 1976 Allis Chalmers Corporation. 224 NLRB 1199. 7 In its statement of position. Respondent incorrectly states that the Board pro forma adopted the overruling of this objection. The record herein shows that the Board pro forma adopted the overruling of Re- spondent's Objection V(a) on a related issue but that Respondent had Filed exceptions to the overruling of objections to the present matter, Ob- jections V(b) and VI 776 ALl IS-CHALMERS CORPORATION action on the outstanding complaint, the union dis- tributed letters to employees stating (ibid.): As you know by now, Management was found guilty of engaging in unfair labor practices and was ordered to post a 60-day Notice. The Board found that the statement was incor- rect, as no such guilty finding had been made by the Board, and that it amounted to a substantial mischaracterization or misuse of Board documents, to which the Employer could not effectively re- spond, and constituted objectionable conduct re- quiring that the election be set aside. In Formco the Board emphasized particular con- cern with preelection conduct which might impugn the Board's integrity or take advantage of its proc- esses for partisan election purposes. In that decision the Board did not establish a per se rule for han- dling such conduct,8 but, referring to earlier cases in which it had expressed the same concern,9 it reaffirmed a purpose to protect its machinery and documents from abuse. Consequently, the Board carefully evaluates alleged objectionable campaign conduct to determine whether it might leave the impression among voters that the Board favors one party to an election. When in a particular factual situation the Board has found conduct which is a substantial mischaracterization or misuse of its processes with a potential of placing its neutrality in question, the Board has set aside the election.t0 In the light of these considerations we have re- viewed that part of our representation decision in- volving the Union's preelection statements con- cerning Cook's discharge, the issue remanded to us by the court. We previously found that the Union had not engaged in objectionable conduct affecting the validity of the election, and we reaffirm that finding. Chairman Fanning concludes that the Union's statements about the Cook discharge which ap- peared in the February 17 leaflet do not constitute a substantial mischaracterization of the pending unfair labor practice proceeding. While the caption in the leaflet erroneously stated that Respondent had been "found guilty of wrongful firing," the dis- cusion which followed and referred to the NLRB stated only that the agency "has recommended" that Cook be returned to work with full pay. This message was substantially correct as a complaint had issued which, in effect, "recommended" that " See George J London Mlenmorial Hospital. 236 NLRB 797 (1978) 5 For example. Duhie-ClarA C, Incorporated, 2(9 NLRB 217 (1974). Thiokol Chenwal Corporation. Ilall- Way Plant, 202 NLRB 434 (1973) "' See Building Leasing Corporation 239 NLRB 13 (1978), Ona Crpo,- ration. 235 NI.RR 595 (1978); Galton Indusiries-Femco Division. 240 NLRB 546 (1979) the Board order Cook reinstated with backpay. T The word "recommended" signified that further consideration would be given to the "recommend- ed" action before a final determination was made at which time the recommendation might be accepted or rejected. 12 Such a representation was consistent with earlier information which the employees had received from Respondent that a hearing would be held concerning the Cook case. Moreover, the Union's statement was part of a campaign leaflet obviously presenting the Union's point of view as a contestant against the Respondent and not implying that the Board endorsed that partisan position. He does not think these facts warrant the conclusion that the Union's conduct reflected upon the Board's neutrality toward the election. Member Penello agrees that the Union was prop- erly certified. However, he did not participate in Formco, Inc., supra, and does not adhere thereto. Therefore he finds it unnecessary to decide wheth- er or not the instant case can be distinguished from Formco. Rather, he regards this case as controlled by the principles set forth in his dissenting opinion in Dubie-Clark Co., Incorporated, 209 NLRB 217 (1974). The instant case, like Dubie-Clark, involves at most, a statement by the Union that the Board had found that the Employer violated the Act whereas, in fact, the Board had made no such find- ing. Here, as in Dubie-Clark, there has been no al- teration of a Board document. Instead, the state- ment in question appeared in a campaign leaflet which the employees were fully capable of identi- fying and evaluating. Under these circumstances, he concludes, as he did in Dubie-Clark, that the Union's conduct did not interfere with employee free choice in the election. Having reaffirmed the certification upon which the Board had earlier found that Respondent was obligated to recognize and bargain with the Union, and having also accepted the court's original remand for further evidentiary proceedings on the basis for the backpay award as interpreted by the court,'3 we shall order that this proceeding be re- '' See George J London Memorial Hospital. supra. involving a union statement that "For the Labor Board to issue a complaint and order a hearing, there has to be merit in the case"; and Monmourh Medical Center. 234 NLRB 328 (1978), enforcement denied 604 F.2d 820 (3d Cir 1979), involving a union reference to a hearing scheduled on unfair labor practice charges and comment that [t]he NLRB conducts such hearings only after investigation and rendering merit to such charges." 12 Cf Gulton Industrier. upra, where a union's mischaracterization of a settlement agreement implied that a final determination had been made that the employer had engaged in unfair labor practices and therefore a notice posting had been required and a second election directed : Due to the limited scope of the court's remand in this regard. we need not consider that part of the basis for our earlier award of backpa, premised on the remed prosided in Transmarine Navigarion (orporation. 170 NlRB i 38 (1068). that such a remedy is designed "to recreate in Continued 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manded to the Regional Director for Region 15 for further proceedings in accord with the court's opinion. 14 ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to the Regional Director for Region 15 for further proceedings, including the presentation of any additional evidence in support of a monetary award, in accord with the Judgment of the United States Court of Appeals for the Fifth Circuit and the Board's Order herein. IT IS FURTHER ORDERED that the Decision and Order issued by the Board in Allis-Chalmers Corpo- ration, 234 NLRB 350 (1978), is hereby modified and that the Respondent, Allis-Chalmers Corpora- tion, East Jackson, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain in good faith with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, concerning the effects of the dis- charges of 44 employees in the SDO department in April and June 1975. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuatue the policies of the Act: (a) Upon request, bargain with the aforesaid Union concerning the effects of the discharges of the 44 employees in the SDO department in April and June 1975. (b) Post at its plant in East Jackson, Mississippi, copies of the attached notice marked "Appen- dix."' 5 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's authorized repre- sentative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this some practicable manner a situation in which the parties' bargaining posi- tion is not entirely devoid of economic consequences for the Respond- ent." Id. at 390 See fn 3, above. " We find no merit in Respondent's "Motion to Delay Board's Recon- sideration of Cases." s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant To a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaint in Allis-Chalmers Corporation, 234 NLRB 350 (1978), be and it hereby is, dismissed in all other respects. IT IS FURTHER ORDERED that the Decision and Order issued by the Board in Allis-Chalmers Corpo- ration, 237 NLRB 290 (1978), is hereby vacated, and that the complaint in Case 15-CA-6772 be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: A reexamination of the record in the present case indicates that, during the election campaign, the Union circulated a leaflet containing a headline: "COMPANY FOUND GUILTY OF WRONG- FUL FIRING." Although a complaint had been issued by the Board's Regional Office containing such an allegation, no formal determination had been made at that time by the Board that the Em- ployer was guilty of such misconduct. As only the Board can make this determination, the Union's headline amounted to a substantial mischaracteriza- tion of the Board's proceeding in that matter. 6 By means of this mischaracterization, the Union inter- jected supposed Board determinations adverse to the Employer into the representation election cam- paign, and by doing so placed the Board's neutral- ity in question during the critical preelection cam- paign period. Under the rule established in Formco, Inc., 233 NLRB 61 (1977), Petitioner's mischarac- terization was objectionable, and the election should be set aside. Formco involved similar missta- tements which the Board found were reasonably calculated to mislead employees into believing that the Board had judged the Employer to have com- mitted unfair labor practices whereas, in truth, such practices were never proven. Noting that the Board has been consistent in jeal- ously guarding againt any intrusion or abuse of its processes for partisan election purposes, the Board in Formco concluded that "our concern is with the protection of the integrity of our own processes, lest any voter be left with the impression that this Board is biased in favor of any party in an election. We are unwilling to condone any campaign state- ment which even implies such bias." I am not con- vinced by Chairman Fanning's attempts to distin- guish Formco, and therefore dissent from the ma- jority's refusal to set aside the election. The Chairman admits that the Union's leaflet er- roneously stated that the Employer had been found guilty of a wrongful firing. However, he proceeds 16 As noted by the majority, the Board subsequently determined that the Employer had nor engaged in the alleged misconduct. 778 ALLIS-CHALMERS CORPORATION to ignore that unequivocal statement and apparent- ly finds that the Union clarified this error by stat- ing that the NLRB "has recommended" that the discharged employee be reinstated with backpay. Thus, he finds that the Union indicated that the Board has not made a final determination and that it would further consider the matter before doing so. Clearly, the statement that the Employer has been "found guilty," without more, indicates that a final decision has been made. An employee's under- standing of the Union's further reference to what the NLRB "has recommended" presumes that such employee is familiar with Board proceedings, a presumption which is without basis in the present record.1 7 Even on its face, however, the fact that the NLRB "has recommended" specific action does not provide a clarification by inferring that re- consideration of the matter would be forthcoming by the same agency prior to its making a final de- termination. On the contrary, the entirety of the Union's message was that the Employer has been found guilty, the NLRB has made its "recommen- dations," and the Board proceedings have been completed. Accordingly, I find that the facts of this case fall squarely within the principle of 17 I note that the Board. in the normal course, does not make recom- mendations. Accordingly. familiarity with Board proceedings would only serve to confuse matters further Formco. Thus I would set aside the election, direct that a second election be conducted, and dismiss the 8(a)(1) and (5) allegations. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively in good faith with International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America, UAW, concerning the effects of the discharges of 44 employees in the SDO department in April and June 1975. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargain- ing or other mutual aid or protection, or to re- frain from any or all such activities. ALLIS-CHALMERS CORPORATION 779