Lockwood, Kessler & Bartlett, Inc.

LOCKWOOD, KESSLER & BARTLETT, INC. 561 Lockwood, Kessler & Bartlett, Inc. a subsidiary of Viatech, Inc. and Engineers Union, Local 444, International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC, Petitioner. Case 9-RC-4643 August 26, 1980 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENEILO AND TRUESIAI.E 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 objections and challenged ballots in an election conducted on Sep- tember 12, 1979,' and the Acting Regional Direc- tor's report recommending disposition of same. The Board has reviewed the record in light of the Em- ployer's exceptions and brief and hereby adopts the Acting Regional Director's findings and recom- mendations only to the extent consistent herewith. The Acting Regional Director recommended that that portion of Petitioner's Objection 6 alleg- ing mischaracterization of Board decisions be sus- tained and that a second election be directed. The Acting Regional Director further recommended that in the event the Board did not adopt this rec- ommendation, a hearing be conducted to resolve issues raised by Petitioner's Objections 1, 2, 3, 4, and 5, and by the challenged ballots, and that por- tion of Petitioner's Objection 6 as it relates to mis- representations other than the mischaracterization of Board opinions be overruled. 2 Objection 6 alleged that during the course of the campaign the Employer made substantial and mate- rial misrepresentations of fact and law. In support of this objection, Petitioner submitted, inter alia, three leaflets distributed by the Employer during the preelection campaign. The first leaflet,3 appar- ently issued the week before election week, con- tained reprinted excerpts from the Board's decision in Local 761 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company), 220 NLRB 830 (1975), in which another local affiliated with the same International Union as Petitioner was charged with violating the Act by the trial, fine, and suspension of a member for his attempts to persuade part of a bargaining unit to withdraw from the local. The Board deci- ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election The tally of ballots was six for. and nine against Petitioner; there were four challenged ballots, a sufficient number lo affect the results of the election 2 In the absence of exceptions, we adopt this latter recommendation pro forma. 3 (Appendix A omitted from publication) 251 NLRB No. 84 sion's statement of these facts is included in the leaflet, along with the Employer's marginal notes of these facts, but not the Board's ultimate conclu- sion that the local had not committed any unfair labor practice by this conduct. Another leaflet 4 contains exerpts from Local 767, International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC (General Electric Company), 186 NLRB 682 (1970), in which the Board found that another local of the same Interna- tional as Petitioner violated Section 8(b)(1)(A) of the Act by imposing fines and other penalties on members who attempted to resign and to revoke their dues-checkoff authorizations during a strike. Again, the Employer's leaflet includes a reprint of the Board's statement of facts and the Employer's statement of the facts, but does not contain or men- tion the Board's finding that this conduct was un- lawful. The third leaflets contains excerpts from Local 444, International Union of Electrical and Machine Workers. AFL-CIO, CLC (Sperry Rand Corpora- tion), 235 NLRB 98 (1978), in which Petitioner was found to have violated Section 8(b)(1)(A) of the Act by instituting disciplinary proceedings against, fining, and threatening to enforce fines against, members who resigned during a strike and crossed a picket line to return to work. Unlike the other two leaflets, the third included the Board's conclu- sion that the conduct violated the Act. The Acting Regional Director found that by omitting the Board's findings and conclusions from the leaflets containing the excerpts from the deci- sions involving Local 767 and Local 761 the Em- ployer "obfuscated the legal principles applied by the public agency charged with the administration of the National Labor Relations Act," especially inasmuch as the leaflet which referred to the Local 444 case includes the Board's findings that Petition- er violated the Act. Accordingly, the Acting Re- gional Director found that the leaflets were objec- tionable and recommended that the election be set aside. We disagree. There is no question that the reprints were accu- rate copies of excerpts from Board decisions or that the Employer's marginal notes correctly re- flect the facts of the cases. The leaflets contain no editorial comments about legal principles or the Board's decisions, nor was there any implication that the Board had taken action or made findings which it had not. The leaflets further indicate on their face that the Employer's purpose in distribut- ing them was to demonstrate to the employees the 4(Appendix B omitted from publication (Appendix C mitted from publication ) 562 I)DECISIONS OF NATIONAL IL.A()R RELATIONS HO()ARD kinds of action that local affiliates of the Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC, had taken in the past against members. In these circumstances, the leaf- lets cannot be said to mischaracterize legal princi- ples to which they make neither explicit nor im- plied reference. In concluding that the leaflets were objection- able, the Acting Regional Director relied upon Formco, Inc., 233 NLRB 61 (1977); Natter Manu- facturing Corporation, 210 NLRB 118 (1974); and Thiokol Chemical Corporation, Hall-Way Plant, 202 NLRB 434 (1973). However, in all those cases the conduct found to be objectionable involved either misstatements of Board law or misrepresentations of Board findings.6 Inasmuch as the leaflets in issue here accurately represented the facts as found by the Board in certain cases (and in one instance the legal conclusions drawn by the Board from those facts), we conclude that cases involving situations where Board law or findings were mischaracter- ized are inapposite. In the instant case, the Employer merely repro- duced portions of Board decisions stating the facts of the cases involving Petitioner and other locals of the same International Union in order to show con- duct in which these unions had engaged in the past. The Employer did not state or imply that such practices were supported by the Board or mischaracterize Board law or principles. Rather, the comments regarding the facts of the cases are undisputably accurate, and the Employer's other statements merely advised employees that voting against Petitioner would prevent their being in- volved in similar situations, again an accurate as- sessment. Whether the Board did or did not find the conduct described in the leaflets to have violat- ed the Act is inmaterial to the question of whether the conduct occurred or whether an employee could avoid being subjected to it.7 6 Thus. in Thiokol,. supra, the employer mailed to employees portions of an outdated Board document containing a statement ofr the right of economlic strikers which was no longer accurate; in aller. upra, the em- ployer informed employees hat the petitioner had been found guilty of unfair labor practices when in act the petitioner had signed an informal settlement agreement which conltained a nonadmission clause. Similarly, in Formco. upra, petitioner distributed a letter to employees stating that the employer had been found guilty of unfair labor practices when in fact a month earlier the employer had eecuted a settlement agreemenl with the union, subsequently approved which also contained a nona;dmission clause. ? Thus to ind, as did the Actiig Regional Director, that the reproduc- lion of the imcomplete oard decisinlls hfuscated legal principles is to On the basis of all the foregoing, we conclude that the campaign leaflets at issue are not objec- tionable.8 Accordingly, we shall not adopt the Acting Regional Director's recommendation that a portion of Objection 6 be sustained, and shall adopt his alternative recommendation that a hearing be held to resolve issues raised by Objections I through 5 and the challenged ballots. DIRECTION It is hereby directed that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the challenge to the ballots of Donald Angus, Joseph Litchtwald, Sue Carrol, and George Woods and by Objections I through 5. IT IS FURTHER DIIRIC.D) that the hearing officer designated for the purposes of conducting the hear- ing shall prepare and cause to be served upon the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the above issues. Within the time prescribed by the Board's Rules and Regulations, Series 8, as amended, either party may file with the Board in Washington, D.C., 8 copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof upon the other party and shall file a copy with the Regional Di- rector. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing offi- cer. IT IS ALSO FURTHER )IR.ICTILD that the above- entitled case be, and it hereby is, remanded to the Regional Director for Region 29 for the purpose of conducting such hearing, and the said Regional Di- rector be, and hereby is, authorized to issue notice thereof. fashion a per se rule that any Hoard document which is reproduced in part. for whatever reason and eslen if only the reproduced prtiot is rele- sant, misuses the Board's processes We co(sider such a rule neither nec- essary nor appropriate. Member 'enello agrees that the Elplioyer's leaflets do not constitute objectionable conduct See his diseltiig opinii ln in Duie-Claurk (Co.. In- corporuled. 209 NLRH 217 ( 174)