Chillicothe Paper Co.

National Labor Relations Board - Board Decisions

Jan 9, 1958

119 N.L.R.B. 1263 (N.L.R.B. 1958)

CHILLICOTHE PAPER CO. 1263
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning
of Section°9 (b) of the Act:
All production and maintenance employees at the Employer's
Matoon, Illinois, lamp plant, including cafeteria employees, but ex-
cluding office clerical employees,-guards, watchmen, professional em-
ployees, and supervisors as defined in the Act.
5. Apart from a request therein for a hearing on the objections, the
Petitioner's exceptions are limited to the Regional Director's failure
to find merit in the objections which allege in effect that the Employer
was guilty of conduct which caused employees to fear that they would
suffer economic reprisals if they voted for the Petitioner. In its ex-
ceptions, the Petitioner does not submit additional evidence to support
its position, nor does it contravene any of the factual findings of the
Regional Director. It contends that the evidence in the record is
adequate to support the objections allegmg coercive conduct.
Upon consideration of the Regional Director's report, the Peti-
tioner's exceptions thereto, and the entire record, we find, in accord
with the Regional Director, that the investigation herein failed to
produce evidence of the coercive conduct attributed to the Employer
by the Petitioner. And since, as indicated above, the Petitioner has
raised no issue as to the factual findings made by the Regional Di-
rector in connection with any of the objections, we find (further that
a hearing in this case would serve no useful purpose, and hereby deny
the Petitioner's request therefor 2 In the circumstances, we shall
adopt the recommendations of the Regional Director and overrule
the objections in their entirety. Accordingly, as the Petitioner has
failed to secure a majority of the valid ballots cast, we shall certify
the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for International Association of Machinists, AFL-CIO, and that
said organization is not the exclusive representative of the employees
in the appropriate unit at the Employer's Matoon, Illinois, plant ]
2 Benton's Cloak & Suit Company, 97 NLRB 1327, C C Anderson Stores Company,
104 NLRB 218
Chillicothe Paper Co. and United Papermakers and Paperwork-
ers, AFL-CIO, Petitioner. Case No. 9-RC-3011. January 9,
1958
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On March 21, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
119 NLRB No. 15L
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direction and supervision of the Regional Director for the Ninth
Region among the employees in the agreed appropriate unit. Fol-
lowing the election the Regional Director served upon the parties a
tally of ballots which showed that of approximately 334 eligible
voters, 319 cast ballots, of which 147 were for the Petitioner, 169 were
against the Petitioner,1 ballot was void, and 2 ballots were challenged.
On March 25, 1957, the Petitioner timely filed objections to the
election and to conduct affecting the results of the election, alleging
in substance that approximately 8 hours before the polls opened an
unknown person or persons distributed in the name of the Petitioner
counterfeit leaflets which fraudulently misrepresented objectives of
the Petitioner to its prejudice and thereby prevented the exercise by
employees of a free choice in the selection of a bargaining repre-
sentative. The Regional Director investigated the objections and on
May 31, 1957, issued and duly served upon the parties a report on
objections in which he recommended that the Petitioner's objections
be sustained and that the election be set aside and that a new election
be ordered by the Board. Thereafter, the Employer timely filed
exceptions to the Regional Director's report and a supporting brief,
and the Petitioner filed a reply to the exceptions of Employer.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in the case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All production and maintenance employees at the Employer's
Chillicothe, Ohio, paper manufacturing plant, including janitors,
inspectors, truckdrivers, and sample department employees, but
excluding superintendents, assistant superintendents, foremen and
assistant foremen, tour bosses, office clerical employees and all guards,
professional employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. There is no substantial dispute as to the facts set forth in the
Regional Director's report. According to the report, between 10 and
11 p. in. on March 20, 1957, the night before the election, approxi-
I The request of the Employer for oral argument is denied since the report on objections,
exceptions , brief, and reply to the exceptions of the Employer adequately set forth the
positions of the parties.
CHILLICOTHE PAPER CO. 1265
mately 8 hours before the polls opened,2 an unknown party or parties
entered the Employer's main parking lot and distributed leaflets by
placing them on or in employees' automobiles parked in the lot and
by handing them out to the third-shift employees reporting for work.'
These leaflets listed "some good reasons" why it would be advantageous
to join the Petitioner, and contained the following statements: (1)
The Petitioner believed that 40 hours was a sufficient workweek for
an employee so as to give other potential employees work; (2) initia-
tion fees and dues were to be paid on a percentage basis, that is, the
more money earned, the more dues and initiation fees paid; (3) one
Mr. Ernest Cockerell would act as its representative in the Chillicothe
area; and (4) it would teach certain members picket and strike con-
duct. These leaflets carried the typewritten signature of the
Petitioner. There was no evidence that either the Petitioner or the
Employer was in any way connected with the publication or
distribution of the leaflets.
Both parties agree that the leaflets were forgeries and that the state-
ments were false. The investigation conducted by the Regional Di-
rector supports this conclusion. Thus, it disclosed that the 48-hour
week is standard in the Chillicothe paper mills, that the employees in
all other paper companies holding contracts with the Petitioner work
more than 40 hours and that the 40-hour week is not one of the Peti-
tioner's principles. The report also showed that the Petitioner's dues
are assessed as a flat rate basis and no initiation fee at all was to be
required of the Employer's employees. Regarding the third statement
that Cockerell would act as the Petitioner's represenative in the Chilli-
cothe area, the investigation revealed that Ernest Cockerell who had
recently received wide unfavorable public notoriety was not and has
not been connected with the Petitioner in any capacity.' Finally, as
to the statement that it would train certain members in strike and
picket conduct, although claiming it was highly damaging to its cause,
the Petitioner did not specifically deny this statement as untrue.
Due to the nature of the fraudulent statements contained in the
leaflets distributed to the third-shift employees on election eve, the
Regional Director properly assumed, and the Employer in effect so
conceded in its brief, that the contents of these leaflets were known to
all employees working the third and split shifts before the polls opened
2 The polls were open at two different periods-from 6 : 30 a. in. to 7 a. in. and from
2 p. m. to 4: 30 p. in. on March 21, 1957.
The Employer's employees, involved herein, work three shifts : 7 a. in. to 3 p. in.
3 p. m. to 11 p. in. ; and 11 p. in. to 7 a. in., termed respectively, the first, second, and
third shifts. Also a split shift begins at 7 p. in. and ends at 7 a. m. the next morning.
41n its objections, the Petitioner states that the name Cockerell was put in the leaflet
because Cockerell has an unsavory reputation in Chillicothe and that he was formerly
employed at the Mead Corporation where he was president of District 50, UMWA.
According to the stipulation for certification upon consent election the Employer is a
wholly owned subsidiary of the Mead Corporation.
476321-58-vol. 119-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 6: 30 a. m.5 on March 21. However, approximately 3 hours before
the polls opened, the Petitioner first learned of the forged leaflet. If
then distributed to employees coming to work on the 7 a. m., or first
shift, a reward circular in which the Petitioner expressly disclaimed
authorship of the leaflet distributed by the unknown person or per-
sons, and offered a $500 reward for the arrest and conviction of the
person responsible for the fraudulent leaflets. The Petitioner was
unable directly to contact, before the voting, 39 employees working
on third shift and 5 others working split shifts, all of whole did not
finish work until 7 a. in. when the first shift was scheduled to start.
Relying upon the element of fraud in attributing false statements to
the Petitioner and upon the timing of the distribution of the spurious
leaflet containing. such statements, the Regional Director concluded
that the employees were unable to recognize the leaflet as a forgery,
and to evaluate it properly and that it was immaterial that the leaflet
was distributed by unknown persons. Accordingly, he recommended
that the Petitioner's objections be sustained, the election be set aside,
and a new election directed by the Board. The Employer excepts on
the ground that: (1) the leaflet was clearly recognizable by the em-
ployees as a forgery; (2) the reward circular neutralized the effects of
the leaflet; and (3) the election should not be set aside when the con-
duct is not attributable to the Employer and does not involve conduct
akin to "physical or economic terrorism." We find no merit in the
exceptions.
While the Board generally will not censor or police preelection
propaganda,6 the Board has imposed certain limits which, when trans-
gressed, require corrective action. "Thus exaggerations, inaccuracies,
partial truths, name-calling, and falsehoods, while not condoned, may
be excused as legitimate propaganda, provided they are not `so mis-
leading' as to prevent the exercise of a free choice by employees in
the selection of their bargaining representative. Propaganda of this
sort, the Board has said, will not be censored or policed if it remains
within bounds and in this connection the question to be decided is one
of degree. In sum, the ultimate consideration is whether the chal-
lenged propaganda has lowered the standards of campaigning to the
point where it may be said that the uninhibited desires of the em-
ployees cannot be determined in an election." ' Guided by this prin-
ciple, the Board has set aside elections where one party has made de-
liberate misrepresentations with respect to matters, the truth or falsity
of which were within the party's special knowledge, and has so timed
the distribution that adequate rebuttal could not be made before the
5 The Employer's brief states that of 41 third-shift employees interviewed only approxi-
mately 4 knew nothing about the fraudulent leaflet and 3 could not recall what happened
that evening.
9 See Merck & Co., Inc., 104 NLRB 891, and cases cited therein.
7 United Aircraft Corporation, 103 NLRB 102, 104.
CHILLICOTHE PAPER CO. 1267
nlection,8 and where, because of the conduct and interference of third
parties, the election was conducted under circumstances and condi-;
tions that were'not conducive to the sort of free and untrammeled
choice of representatives contemplated by the Act.'
In the present case, we agree with the Regional Director that the
forged leaflet contained fraudulent statements which the employees
might expect and evaluate if known to have been made by the Peti-
tioner's opposition, but which the employees would naturally tend
to accept as true when made by the Petitioner as the statements were
in 'effect admissions against interest. Thus, while some employees;
may have expressed their disbelief, we do not believe that the spurious
leaflet was so clearly recognizable as fraud so as to be completely dis-
regarded by the employees, particularly as other statements contained
therein may well have been attributed to the Petitioner or other labor
organizations .l' We further agree with the Regional Director that
there was insufficient time to nullify effectively the effects of the
fraudulent leaflet. The Petitioner could reach the third- and split-
shift employees in the plant only indirectly through the first-shift
employees who came early to work and who distributed or talked
about the reward circulars in the plant. Although some of the third-
and split-shift employees may have been able to read the reward
circulars before they voted, we do not believe, under the circumstances,
that they and the other employees had sufficient time within which to
evaluate adequately the fraudulent leaflet.11 We are satisfied that
the instant case requires invocation of the Board's corrective authority.
No doubt whatever exists as to the deliberateness of the forgery and
deception perpetrated by the unknown person or persons who authored
and distributed the fraudulent leaflets. The conclusion is impelled:
that the unknown person or persons, by their deliberate deception as
to the source of the spurious leaflets, so misled the employees that they
could not reasonably be expected to recognize it as a fake or evaluate
it as propaganda. The leeway permitted parties in the use of cam-
paign propaganda stems in part from the Board's belief that employees
recognize propaganda "for what it is, and discount it." The Board
has frequently observed that it prefers to leave to the "good sense"'
of the voters the task of appraising propaganda, even though it con-
tains misinformation. This, of course, implies the absence of a trick
to dupe the voters. Deprived of their ability to recognize propa-
8 The Calidyne Company, 117 NLRB 1026; Reiss Associates, Inc., 116 NLRB 217; The-
Cann.med Products Company, 112 NLRB 1092.
-0 The Falmouth Company, 114 NLRB ' 896 ; New York Shipping Association, etc.,. 108'
NLRB 135 ; Diamond State Poultry Co., Inc ., 107 NLRB 3; P. D. Gwaltney, Jr., and
Conipaiy . Inc., 71 NLRB 371.
10 For example the leaflet contained the following: "The AFL paper makers union will'
obtain the following benefits for you : Higher wages , time and one-half for over 8 hours
in any one day ; time and one -half for over 40 hours in any one week, Double time for
Sunday , Paid Holidays, Paid Vacations , sick benefits."
11 United Aircraft Corporation , supra, at p. 107.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganda for what it is, the voters are helpless to exercise good sense in
appraising it.12 That is the situation herein even though the forgery
.and fraud was accomplished by unknown persons. The conduct of
distributing to employees shortly before the polls opened fraudulent
leaflets which appeared to be authentic and which could not be effec-
tively neutralized lowered the standards of campaigning to a level so
as to impair the free-and informed atmosphere requisite to an untram-
ineled expression of choice by the employees and thereby to preclude
a fair and free election. Accordingly, we adopt the Regional.Direc-
tor's conclusion and recommendation, and shall set aside the election
in this case and order that a new election be held.
[The Board set aside the election held on March 21, 1957.]
[Text of Direction of Second Election omitted from publication.]
' United Aircraft Corporation, supra, at p. 105, footnote 9.
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America ; Merchandise Drivers Local 641,
IBT; Local 506, IBT, Its Acting President Walter Adams, Its
Business Agent James Snyder , and Its International Trustee
Rocco F. DePerno' and Ruffalo 's Trucking Service, Inc.
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America ; Its International Vice-
President Thomas L. Hickey; and General Warehousemen's
Local 852, IBT and Ruffalo 's Trucking Service, Inc.
Local 707, Highway and Local Motor Freight Drivers, Dockmen
and Helpers, International Brotherhood of Teamsters and
Ruffalo's Trucking Service, Inc.
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers ; Local 506, IBT, Its Acting President Walter
Adams, Its Business Agent James Snyder , and Its Interna-
G tional Trustee Rocco F. DePerno and Ruffalo's Trucking Serv-
ice, Inc. Cases Nos. 22-CC-2, 20-CC-3, 02-CB-3, and 22-CB-6
(formerly 92-CC-379, 2-CC-384, 2-CB-1720, and 2-CB-1763)
(post 3-CB-367). January 10, 1958
DECISION AND ORDER
On February 8, 1957, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceedings, finding that
1 The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi-
cate of affiliation revoked by convention action, the identification of the Respondent
Unions is hereby amended.
119 NLRB No. 144.