Alco Standard Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 412 (N.L.R.B. 1969)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ipsen Industries Division of Alco Standard
Corporation , Employer-Petitioner and United
Steelworkers of America, AFL-CIO-CLC,
Union-Petitioner . Cases 38-RC-636, and
38-RM-56
December 16, 1969
DECISION , ORDER , AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election approved on March 7, 1969, an
election by secret ballot was conducted on April 3,
1969, under the direction and supervision of the
Regional Director for Region 13, among the
employees in the stipulated unit. At the conclusion
of the election, the parties were furnished a tally of
ballots which showed that there were approximately
145 eligible voters and that 142 ballots were cast, of
which 74 were for the Union and 63 against, with 5
ballots being challenged . The challenged ballots were
not sufficient in number to affect the results of the
election. Thereafter, the Employer filed objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations , the Regional Director
conducted an investigation and on May 14, 1969,
issued and duly served on the parties his Report on
Objections, in which he recommended that the
objections be overruled in their entirety and that the
Union be certified as bargaining representative of
the employees involved. Thereafter, the Employer
filed with the Board exceptions to the Regional
Director's Report and the Union filed an opposition
thereto.
On August 12, 1969, the Board issued an Order
Directing Hearing to resolve the issues raised by
Employer's Objection No. 5 and the exceptions
thereto, in which it ordered that the Hearing Officer
designated for the purpose of conducting such
hearing should prepare and serve on the parties a
report containing resolutions of credibility of
witnesses , findings of fact, and recommendations to
the Board as to the disposition of said issues.
The hearing was held on September 10, 1969,
before Hearing Officer William G. Stack, at which
representatives of the Employer, the Union, and the
Regional Director appeared and participated. On
October 3, 1969, the Hearing Officer issued and
served upon the parties his Report on Objections,
finding no merit in Objection No. 5 and
recommending that it be overruled . Thereafter, the
Employer filed exceptions to the Hearing Officer's
Report and a supporting brief , and the Union filed a
brief in opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's Report, the exceptions, the briefs,
and the entire record in the case, and hereby finds
merit in the Employer's exceptions for the reasons
noted below.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees
employed at the Employer's plant located on
Ipsen Road , Cherry Valley, Illinois , including
plant clerical employees and leadmen (commonly
referred to as assistant foremen), but excluding
office clerical employees, service department
employees, professional employees, guards, and
supervisors as defined in the Act.
5. As noted above, the Hearing Officer found
Employer's Objection No. 5 to be without merit.
We do not agree.
This objection concerns an election campaign
letter dated March 31, 1969, that the Union sent to
all employees. The Employer contends that the
letter contains material misrepresentations which it
did not have an adequate opportunity to rebut.
Since 1965, when he was first employed, Lawton
has worked in the bricking department where
insulation and brick are installed in heat treat
furnaces, a product manufactured by the Employer.
The cutting, scraping, and sawing of bricks into
shape so that they can be placed into the furnaces,
and the handling of insulating material which is
placed into generators, create so much dust that
ceiling exhaust fans are necessary to alleviate the
condition. The Employer also provides employees
with gauze face-mask respirators. A
pre-employment medical examination form signed
by Lawton indicates that prior to his employment
with the Employer, Lawton was suffering from a
persistent cough , asthma, and was having difficulty
in breathing. In mid-March 1969, Lawton requested
a transfer out of the bricking department. His
foreman asked for a doctor's note and said he would
check the possibility of such a transfer. Lawton later
180 NLRB No. 91
IPSEN INDUSTRIES
produced a note from his doctor and was told that
he would be transferred, as had been decided upon,'
but that it would take some time. Lawton responded
that that was all right, "there was no real big
hurry." The Employer itself contacted Lawton's
doctor and was advised that there was no emergency
about the transfer, Lawton had had his condition for
some time and his working conditions would not be
of consequence over a short period of time.
Thereafter, the Union sent its March 31 letter to
the employees which is the subject matter of
Objection No. 5. In essence, the letter mailed to the
employees at their homes, answers a statement
made by the Company in its letter to employees of
March 26, in which the employees were told that the
Union could not give employees "security." The
Union's letter challenges the existence of the
"Company's security" by pointing out that
employee Lawton "has contacted a serious illness
(according to the doctor, as [Lawton] understands it,
it is called `black lung')"; that after showing his
foreman a doctor's request that he be transferred to
a less dusty job, Lawton was told that "a transfer
would not under any circumstances be given" and he
was then placed on the dustiest job in the plant.'
The letter concludes with the argument that better
security and consideration can be obtained through
the Union and it wishes Lawton a speedy recovery.
The election was scheduled for April 3 to begin at
3 p.m. The Union's letter came to the attention of
Scheidegger, the Employer's personnel manager, on
April 2 between 9:30 and 10 a.m. Assistant Plant
Manager Dolan and Assistant Plant Superintendent
Allen had removed copies of the letter from two
different plant bulletin boards earlier that morning
and had brought them to Scheidegger. That same
morning, Scheidegger telephoned Lawton's doctor
about the letter and was advised that the doctor
never told Lawton that he had "black lung";
according to the doctor, Lawton had a mild case of
emphysema. Scheidegger then told Dolan, Allen,
Plant Superintendent Holcomb, and two department
foremen to tell as many employees as possible that
Lawton's doctor had said that Lawton did not have
"black lung" and , also, that .the Employer had not
denied him a transfer to another job. It appears that
about 60 employees, of approximately 145
employees who were eligible to vote in the election,
were contacted.
We find several misrepresentations in the Union's
letter of March 31. Thus, contrary to the statements
and suggestions therein, the "serious" illness of
Lawton was a preexisting one and was not
contracted on the job. The doctor did not describe it
as black lung disease ; Lawton had a mild case of
emphysema. The Employer was not so insensitive to
his request for a transfer as to tell him that he could
'A transfer of Lawton necessitated the reassignment of other personnel
'About 2 weeks before, Lawton told a gathering of 40-50 employees at a
union meeting substantially the same story contained in the letter. He
repeated it at a union meeting on April I.
413
not have it under any circumstances; the decision to
transfer had been made and Lawton was told that.
And Lawton was not thereafter placed on an even
dustier job; he remained where he was.
The Hearing Officer, however, has found that any
misrepresentations that were made were not
material ones, for reasons such as that Lawton
believed he had been told he had black lung disease;
the Union had no reason to believe that Lawton was
mistaken in this belief; Lawton himself had told
employees about his illness and asserted treatment
at the hands of the Employer so that it was common
knowledge in the plant before the letter was written;
Lawton did work on a dusty job; and the employees
are familiar with the manner in which the Employer
treats employees and, in a hotly contested election
campaign, they expect puffing and exaggerations.
It is immaterial that the misrepresentations
contained in the letter may not have been deliberate
for it is the matter of their impact upon the
employees that concerns us. As Hollywood
Ceramics Company, Inc.,3 makes plain, the Board
sets aside elections where there has been a
misrepresentation which involves a substantial
departure from the truth, at a time which prevents
the other party from making an effective reply, so
that the misrepresentation, whether deliberate or
not, may reasonably be expected to have a
significant impact on the election. The letter, which
must thus be evaluated, paints the false picture of an
employer's spiteful, inhuman treatment of a sick
employee.' It is reasonable to believe that this
impression of the Employer conveyed to the
employees, especially during an election campaign
which stressed "security," must have had a real
impact upon the employees, such as might well lead
them to conclude that a union was necessary to
protect them against such happenings as befell
Lawton. All the circumstances compel the
conclusion that the Union engaged in a material
misrepresentation here.s
Alternatively, the Hearing Officer finds that the
Employer had ample opportunity to, and in fact did,
reply to the union letter, so that Hollywood
Ceramics, does not call for setting aside the election.
However, the letter came to the Employer's
attention on the day before the election. The
Employer communicated with its lawyer and
Lawton's doctor regarding the letter and then
dispatched certain management personnel to explain
the true facts to the employees. They talked to
about 60 of the employees.'
'140 NLRB 221.
'On the morning of the election , an employee appeared at the plant
wearing a tee shirt with a picture of a "black lung " on it and bearing ilic
words "black lung" beneath the picture.
'This record does not show that Lawton's "black lung" story was
"common knowledge" before the March 31 letter was written . The Union's
letter not only gave added circulation to the story so that it reached every
employee but served to make it readily acceptable to the employees as
well.
'There were approximately 145 eligible voters and on April 2, there were
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other measures of reply were considered but
rejected in the belief that time did not allow for a
detailed , effective reply to written accusations which
had been mailed to the employees ' homes. We
cannot find that , in the time permitted for reply, the
Employer failed in its obligation to act reasonably
under all the circumstances.
We conclude that Employer ' s Objection No. 5 has
merit and that the Petitioner , by its letter of March
31, interfered with the employees ' free choice in the
election .' Accordingly , we shall order that the
election of April 3, 1969, be set aside , and we shall
direct that a second election be conducted.
ORDER
It is hereby ordered that the election conducted
herein on April 3, 1969, be, and it hereby is, set
aside.
[Direction of Second Election' omitted from
publication.]
absentees as well as night-shift employees, who had to be contacted The
Hearing Officer finds that the Employer 's refutation became "common
knowledge" in the plant before the election but we find the evidence
insufficient to support that inference
'It is unnecessary to consider the Employer ' s other objections to the
election
'ln order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc. 156 NLRB 1236; N L R B v Wyman-Gordon Company,
394 U .S. 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters , must be
filed by the Employer with the Regional Director for Region 13 within 7
days of the date of this Notice of Second Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed.