Kinney Shoe Corp.

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kinney Shoe Corporation and Retail Store Employ- ees Union, Local 1407, United Food and Com- mercial Workers International Union, AFL- CIO, Petitioner. Case 9-RC-12930 August 25, 1980 DECISION AND DIRECTION OF THIRD ELECTION BY CHAIRMAN FANNING AND MEMBERS JE.NKINS ANI) TRUESDALE 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 the challenges and objections to an election held on December 6, 1979,1 and the Regional Director's report recom- mending disposition of same. The Board has re- viewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings and recommendations. Our dissenting colleague argues that Formco, Inc.,2 which the Regional Director relied upon, did not explain why mischaracterization of a Board set- tlement agreement is "not amenable to credible or effective response" and that there is no reason to apply a higher standard to misrepresentations of this sort. A misrepresentation of this sort, however, is not a misrepresentation of the actions of any party, but, rather, a misrepresentation of the ac- tions of the Board. Once either party has called the Board's actions into question, the only credible re- sponse can come from the Board. However, the Board cannot intervene duing an election campaign to set the record straight after its own documents or processes have been misrepresented. Thus, we agree with the Regional Director that a substantial mischaracterization or misuse of a Board document for partisan election purposes is a serious misrepre- sentation which warrants setting an election aside, and, accordingly, we shall direct a third election. [Direction of Third Election 3 omitted from pub- lication.] MEMBER TRUESDALE, dissenting: I cannot agree that the Petitioner's mischaracteri- zation of the legal effects of an informal settlement agreement constitutes grounds for invalidating the election. The December 6, 1979, election is the second election conducted in this case. The first election held on June 21, 1979, was set aside pursuant to a i The election was conducted pursuant to a Stipulation for Cerlifica- lion Upon Consent Election. The tally was: 127 for, and 107 against, he Petitioner; there were 20 challenged ballots. 2 233 NLRB 61, 62 (1977). a Excelsior footnote omitted from publication.] 251 NLRB No. 78 stipulation executed by the parties based on objec- tions filed by the Petitioner. In addition to election objections, the Petitioner filed an unfair labor prac- tice charge alleging violation of Section 8(a)(1) of the Act. The unfair labor practice charge was settled pur- suant to an informal settlement agreement 4 ap- proved by the Regional Director on October 22, 1979. During the period between the two elections, the Petitioner made various references to the objec- tions and the unfair labor practice charge it had filed. Thus, in letters and leaflets to employees on October 15 and November 12, 13, and 20, the Peti- tioner stated that "the Company trying to save face, voluntarily agreed to this posting of the Ceased and Deceased [sic] Order and to the second election," that "[b]ased on these charges and objec- tions, the Government issued a complaint against Kinney's and scheduled a hearing," and that "[tJhe National Labor Relations Board ruled that a new election must be held because of your Company's actions." However, as pointed out by the Regional Director, no complaint was issued, the Board made no findings on the merits of the allegations, and no cease-and-desist order was ever issued. Further, the first election was set aside not as a result of a Board order, but, rather, pursuant to a stipulation executed by the parties. The Regional Director, observing that "[i]t has long been held that any substantial mischaracteriza- tion or misuse of a Board document for partisan election purposes is a serious misrepresentation," recommended that the second election be set aside. However, this is not a case where a party has al- tered a Board document by adding partisan cam- paign propaganda, thereby conveying the sugges- tion that the Board endorses a particular choice." Instead, we are concerned with a situation involv- ing one party's assertion that the Board has found that the other party has committed an unfair labor practice when in fact the Board has not made such a finding. It is true, of course, that the Board has a responsibility to conduct elections in an atmosphere which, insofar as possible, permits employees to make a free and unfettered choice in the selection or rejection of a collective-bargaining representa- tive. This is not to say, however, that the Allied Electric/Mallory Capacitor rationale should be ex- tended, as I believe it has been, to the point where the Board has adopted virtually a per se rule in this area. Labeling the Petitioner's statements as a mis- 4 The settlement agreement conlained a lnonadmission clause , See, e.g., alteration of a sanple hallot, .411ild Electri Products. In.. If0 NLRB 1270 (1954). allerattin f an unfair labor practice complainl. Mallory Capucitor Compunr, v. Dtviviotn o Pr R. Mlu/lorv & (.. It. Ih161 Nl.RB 1510 (1966). KINNEY SHOE CORPORATION 499 characterization of the legal effects of the informal settlement agreement is, in reality, another way of saying that the Petitioner engaged in a material misrepresentation of fact. As such, it should be evaluated against the standards articulated by the Board in Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962), and reaffirmed in General Knit of California, Inc., 239 NLRB 619 (1978). In Formco, Inc., 233 NLRB 61, 62 (1977), the Board, without explianing why, concluded that misrepresentations of this sort are "not amenable to credible or effective response." I disagree and would overrule Formco. There is no reason to apply a higher standard to misrepresentations of this sort. Unlike situations where a Board docu- ment has been physically altered, 6 or instances where the law has been misstated,7 the Employer here, had it chosen to do so, had as long as 8 6 A4lied Electric Productr, upra; Mallor, Capacitor Company, upra 7 See, e.g, Thiokol Chemical Corporation. laill- vay Plant. 202 NLRB 434 (1973) weeks and no less than 15 days to respond, and could readily have explained to employees its ver- sion of the import of settling the unfair labor prac- tice charge and stipulating to set aside the first election. The majority's response begs the question. Of course, I agree that the Board cannot intervene during an election campaign "to set the record straight after its own documents or processes have been misrepresented." Contrary to the majority, however. the Board is not the sole repository of truth for the facts in such matters, and there is simply no reason why the parties, both of whom possess all the facts, cannot "set the record straight" as to the status of an unfair labor practice charge or in regard to an alleged mischaracteriza- tion thereof. Accordingly, I would overrule this objection and, since the Regional Director found it unneces- sary to rule on the remaining objections, remand to the Regional Director for consideration of the merits of the Employer's other objections. KINNEY SHOE CORPORATION 49q