Allis-Chalmers Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 775 (N.L.R.B. 1980)

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