Certain-Teed Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 76 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certain-Teed Corporation and Glass Bottle Blowers
Association of the United States and Canada,
AFL-CIO. Case 10-CA-15796
29 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 19 March 1981 the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' in which it found that by re-
fusing to bargain with the Union, certified by the
Board in Case 10-RC-11650 on 13 March 1980,2
the Respondent had engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the National Labor Relations Act. The Board
ordered the Respondent to cease and desist from its
unlawful conduct, and to recognize and bargain
with the Union. Subsequently, the Respondent filed
with the United States Court of Appeals for the
Eleventh Circuit a petition for review of the
Board's Order, and the General Counsel filed a
cross-petition for enforcement.
In an opinion dated 24 August 1983 3 the court
denied enforcement of the Board's Order and re-
manded the case to the Board with the instruction
that the Board decide whether the standard gov-
erning alleged campaign misrepresentations enunci-
ated in Midland National Life Insurance Co., 263
NLRB 127 (1982), should be applied retroactively
to this case. The Respondent and the Union filed
statements of position with the Board.4
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have carefully reviewed the entire record in
the underlying representation proceeding, as well
as the statements of position, and for the reasons
discussed below we have decided to apply Midland
National to this case. Accordingly, we shall reaf-
firm our Certification of Representative issued in
Case 10-RC-11650 and our previous Order in this
proceeding.
The Respondent refuses to bargain with the
Union on the ground that certification of the Union
was improper because during the election cam-
paign the Union interfered with the employees'
free choice by misstating the amount of wage raises
given by the Respondent in the year preceding the
election. In the underlying representation proceed-
' 255 NLRB 65 (1981).
' Not reported in Board volumes.
s 714 F.2d 1042 (1983).
4 We hereby deny the Respondent's motion for oral argument.
271 NLRB No. 14
ing, the Regional Director assumed that a misrep-
resentation had occurred, but overruled the objec-
tion on the grounds that the Respondent had an
adequate opportunity to respond to the misrepre-
sentation and that the misrepresentation would not
likely have misled employees because most of them
knew the amount of raises they had received in the
previous year. The Regional Director applied the
then current standard for misrepresentations set
forth in Hollywood Ceramics Co., 140 NLRB 221
(1962), and revived in General Knit of California,
239 NLRB 619 (1978). On 13 March 1980 the
Board adopted the Regional Director's findings
and certified the Union. As mentioned above, the
Board subsequently found unlawful the Respond-
ent's refusal to bargain with the Union.
While the Respondent's petition for review of
the Board's order was pending in the Eleventh Cir-
cuit, the Board in Midland National abandoned the
Hollywood Ceramics-General Knit standard and held
that it no longer would probe into the truth or fal-
sity of parties' campaign statements and would not
set aside elections on the basis of misleading cam-
paign statements. The Board stated in Midland Na-
tional that the new policy shall be applied "to all
pending cases in whatever stage."
The Eleventh Circuit found that the Board acted
within its discretion in overruling Hollywood Ce-
ramics and General Knit, and that the Board prop-
erly could apply Midland National retroactively to
the Respondent's misrepresentation objection. Nev-
ertheless, despite the "seeming clarity" of the
Board's statement that the new policy would apply
to all pending cases in whatever stage, the court
concluded that it could not discern what effect the
Board wished Midland National to have on cases
pending before the courts. The court decided that
a remand was necessary because the Board in the
first instance should determine the retroactivity
question.
The Board held in Midland National that, on bal-
ance, the Hollywood Ceramics rule operated more
to frustrate than to further the fundamental statuto-
ry purpose of assuring employee free choice. In ad-
dition, the Board decided that applying the Mid-
land National standard retroactively would impose
no substantial hardship on an objecting party, but
that failure to do so would be contrary to the statu-
tory design sought to be achieved.
Here, the Respondent seeks to nullify the em-
ployees' free choice of a collective-bargaining rep-
resentative through reliance on a policy which the
Board has rejected. In remanding this case to us,
the Eleventh Circuit stated that if Hollywood Ce-
ramics is the standard to be applied the Board
erred in overruling the misrepresentation objection
76
CERTAIN-TEED CORP.
without holding a hearing, but that if the Midland
National standard can be applied the objection will
be overruled and the need for a hearing obviated.
Failure to give Midland National retroactive
effect here would further delay the effectuation of
the employees' statutory right to collective repre-
sentation by forcing a hearing and Board review
under a legal standard-Hollywood Ceramics-
which the Board has decided frustrates the Act's
purposes. The Supreme Court has instructed that in
determining whether to apply a change in law ret-
roactively it is necessary to balance the adverse
consequences of retroactivity, if any, against "the
mischief of producing a result which is contrary to
a statutory design or to legal and equitable princi-
ples." SEC v. Chenery Corp., 332 U.S. 194, 203
(1947). We find that in Midland National the Board
engaged in the Chenery balancing process and con-
cluded that the new policy is to be applied to all
pending cases. We recognize that the Board has no
jurisdiction over cases pending in the circuit
courts, but the Board is not precluded from ex-
pressing its intention that the Midland National rule
be given the broadest possible retroactive effect. In
this case, the court has asked for our guidance in
determining whether the new rule should be ap-
plied retroactively. Moreover, rather than waiting
for remands from other circuit courts in similar
cases, we believe that the interests of efficiency and
certainty will be best served if we look beyond this
particular case and declare our preference that
Midland National be applied retroactively to all
pending cases, including those in the judicial stage.
Such an approach comports with the well-estab-
lished legal principle that "a court is to apply the
law in effect at the time it renders its decision,
unless doing so would result in manifest injustice or
there is statutory direction or legislative history to
the contrary." Bradley v. Richmond School Board,
416 U.S. 696, 711 (1974). 5
8 Member Hunter agrees with the majority's decision to apply Midland
National retroactively in this case and to overrule the Respondent's Ob-
Our ruling here is consistent with the opinions of
two other circuit courts which have addressed the
issue presented here. Both the Fourth and the
Eighth Circuits have concluded that the Board in-
tended to apply Midland National retroactively to
cases pending before appeals courts and that to do
so would not result in any manifest injustice.6
The Board in Midland National determined that
its new misrepresentation rule "best accommodates
and serves the interests of all." In view of that de-
termination and the declaration that the new policy
shall be applied "to all pending cases in whatever
stage," we give Midland National retroactive effect
in this case and overrule the Respondent's Objec-
tion 1. As that is the only remaining objection to
be considered pursuant to the court's remand, we
reaffirm the Certification of Representative issued
in Case 10-RC-11650 and our prior Order in Case
10-CA-I 5796.
ORDER
The National Labor Relations Board affirms its
Decision and Order issued in this proceeding 19
March 1981 (reported at 255 NLRB 65) and orders
that the Respondent, Certain-Teed Corporation,
Athens, Georgia, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
jection I on the merits. In so doing, he notes that this case was remanded
to the Board for the express purpose of having the Board determine
whether to apply Midland National retroactively. He disassociates himself
from the language of the decision that applies Midland National to cases
"at the judicial stage" because the Board has no jurisdiction over cases
actually pending before the courts.
I National Posters v. NLRB, 720 F.2d 1358 (4th Cir. 1983); NLRB v.
Monark Boat Co., 713 F.2d 355 (8th Cir. 1983). See also NLRB v. New
Columbus Nursing Home, 720 F.2d 726 (Ist Cir. 1983); NLRB v. Semco
Printing Center, 721 F.2d 886 (2d Cir. 1983); NLRB v. Rolligon Corp., 702
F.2d 589 (5th Cir. 1983). In the last three decisions, the circuit courts
agreed with the Board's application of Midland National retroactively in
cases which had begun as Board representation proceedings under Holly-
wood Ceramics.
77