Clark Equipment Co.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1166 (N.L.R.B. 1979)

I)F.C(ISIONS OF NATIONAL LABOR RELATIONS BOARD)
Clark Equipment Company and United Steelworkers
of America, AFL-CIO, Petitioner. Case I1 RC
4626
June 13, 1979
DECISION AND ORDER REMANDING
PROCEEDING
BY MEMBERS JENKINS, PENEI.LO), AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion held February 22, 1979,' and the Acting Re-
gional Director's report recommending disposition of
same. The Board has reviewed the record in light of
the exceptions and brief, and hereby adopts the Act-
ing Regional Director's findings and recommenda-
tions only to the extent consistent herewith.
Petitioner filed two objections to the election held
herein. The Acting Regional Director did not rule on
Objection I but instead recommended that Objection
2 be sustained and that the election to set aside. For
the reasons set forth below, we disagree with that rec-
ommendation and accordingly we remand this pro-
ceeding to the Regional Director for the further pro-
cessing of Objection I as specified below.
Petitioner's Objection 2 alleged that representatives
of the Employer made copies of the Board's notice of
election containing the "Rights of Employees" sec-
tion and showed these notices to individual employ-
ees. These notices allegedly had certain portions
struck out and certain language written in which, ac-
cording to Petitioner, was contrary "to the employees'
rights."
Petitioner asserted that the document in question
was shown to two or three employees by representa-
tives of the Employer.2 Specifically, according to Peti-
tioner, on February 20, 1979, Production Control
Manager Barry Johnson showed an employee a re-
produced portion of the Board's notice of election
containing the "Rights of Employees" section and
discussed with the employees the handwritten mar-
ginal notations on the notice. Petitioner further con-
tended that Section Manager Bill White showed an-
other employee a photostatic copy of a portion of the
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 104 for, and 158 against. Petitioner;
there was I challenged ballot, an insufficient number to affect the results.
2 The Acting Regional Director's report on objections indicates that the
reproduced altered copy of the Board's notice was seen by only two emplovy-
ees. The Employer, who does not admit that any employees actually saw the
document, states that three employees were involved in the alleged objec-
tionable conduct.
election notice (apparently the same portion as used
by Johnson), which was written on and highlighted in
yellow pencil.3 White allegedly read each of the hand-
written notes to the employee and solicited the em-
ployee's comments. Finally, Petitioner contended that
the same employee who allegedly was spoken to by
White was also shown a reproduced copy of the same
document by Foreman Dan Shaw.
The Employer admitted that Production Control
Manager Johnson had a copy of a portion of the elec-
tion notice with him when he had discussions with
three employees. The Employer also stated that two
portions of the election notice were highlighted by
Johnson in yellow marking, and certain comments
were handwritten on the notice. According to the
Employer, these handwritten notations were used by
Johnson to organize his thoughts. The Employer does
not admit Petitioner's allegation that the handwritten
comments were seen by the employees concerned.4
The Acting Regional Director noted that the Board
"has long held that the use of the Board's official
documents may convey the impression, albeit errone-
ously, that the Board has somehow allied itself with
the party using it, and this type of conduct should not
be permitted, least of all encouraged." The Acting
Regional Director further stated that while some of
the handwritten comments on the election notice
were innocuous, the one which stated "promise by
union to turn over cards to company after election"
was clearly of importance to employees. Relying on
the Board's decision in Rehmar, Inc.,5 which is dis-
cussed below, and noting that at least one supervisor
had altered a reproduced portion of the Board's no-
tice of election which was then used for electioneering
purposes and seen by employees, the Acting Regional
Director recommended that the election be set aside.
We do not agree with the Acting Regional Director
that Petitioner's objection has merit even assuming,
as Petitioner contends, that three employees were
shown the notice and saw the handwritten comments
on it. It is true, as indicated by the Acting Regional
Director, that the Board is always concerned with
any misuse of a Board document which might be
viewed by the employees as an endorsement by the
Board of a partisan view espoused by one of the par-
ties to an election. Thus, in Rebmar, supra, a portion
3 The following phrases of the notice submitted by Petitioner and of the
notice submitted by the Employer as described below were highlighted in
yellow marking: "conduct which interfered with the nghts of employees and
may result in the setting aside of the election." and "promising or granting
promotions, pay raises, or other benefits to influence an employee's vote by a
party capable of carrying out such promises."
' The only differeuce between the documents submitted by Petitioner and
the Employer is the addition in Petitioner's submission of the phrase "Prom-
ise to minorities that they could have positions held by majorities." We
consider this difference irrelevant in considering the issue here.
' 173 NLRB 1434 ( 1968).
242 NLRB No. 194
1166
CLARK EQUIPMENT COMPANY
of the notice of election containing the "Rights of
Employees" was reproduced by the union with a
statement superimposed at the top stating, "The gov-
ernment protects your right to organize yourself in[to l
a union." The other side of that handbill, which was
apparently distributed to all the employees, contained
an explanation in broad, generalized language of
what a union is, how a union functions, and what a
collective-bargaining contract is. Nowhere did the
handbill refer to or mention the union b name. The
Board in Rehmar, spra sustained an objection to the
election involving the use of this document and
stated:
Our concern is not with the substance of the ma-
terial added to the Board's official notice of elec-
tion, but with the possible impact such a partisan
message added to an official Board document, or
copy thereof, might have on the freedom of
choice of the voter .... To duplicate a part of
the Board's official notice and then to add to it a
personal partisan message that may be inter-
preted by the employee as an endorsement by
the Board of one of the parties to the election.
and thus have an impact on the employees' free-
dom of choice, is, we think, an undesirable use of
Board documents designed for another purpose.
That the Union's message in this case may be
arguably innocuous and that there may have
been at most a narrow or technical violation of
the Allied Electric Products. 109 NLRB 1270,
rule, is clearly irrelevant. Whether deliberate or
unitentional, such action has a tendency to mis-
lead, and we are of the opinion that the Board
should guard against having its prestige put to
such possible abuse.'
However, we note that in A. Brandt Company', Inc.,7
the Board considered further its holding in Rehmar,
supra. In Brandt, supra, as here, an official Board
document (in Brandt, a Regional Director's Supple-
mental Decision and Order) was reproduced, and
contained underlined portions and marginal nota-
tions. Unlike the situation here, the reproduced docu-
ment appears to have been distributed to all employ-
ees. Distinguishing the facts from Rehmar, supra, the
Board in Brandt found that the "underlinings of por-
tions of the reproduced decision and the marginal
comments were obviously not part of the decision it-
self."8 Instead, the Board found that the comments
and underlinings were readily identifiable as partisan
comment, emanating from the union which had dis-
6173 NLRB 1434.
199 NLRB 459 (1972).
199 NLRB at 459
tributed the document, and could not be reasonably
construed as part of the Regional Director's decision.9
Accordingly. the Board found the conduct in Brandt
not objectionable.
In examining the facts herein, we find the Board's
reasoning in Brandt particularly apt. Here, the nota-
tions and highlighting on the reproduced portion of
the notice of election (whether the document used by
the Employer be considered to have been the one
submitted by it or Petitioner) are clearly discernible
as additions made by the Employer rather than by
the Board. These handwritten notations would not
have been reasonably construed by the employees
looking at them as originating with the Board, or as
indicating Board approval of the Employer's position.
Further, we note that the Board document, with the
Employer's notations, was not distributed to the unit
employees, but was seen by, at most, 3 of the 300
prospective voters. In such circumstances, we find no
objectionable conduct established in Objection 2. We
stress, however, as we did in Monmouth Medical Cen-
ter, supra. that we "will continue to closely scrutinize
a party's partisan use of Board documents, whether
of a formal or merely informational nature, and will
set aside an election where a party fails to disassociate
adequately its own partisan remarks from the con-
tents prepared by the Board.""' We do not find this to
be such a case, however. Accordingly, for the above
reasons, we conclude that Petitioner's Objection 2 is
without merit and it is hereby overruled.
With respect to Petitioner's Objection 1, the Acting
Regional Director found that it raised material and
substantial issues which warranted a hearing if the
Board disagreed with his recommended disposition of
Objection 2. There were no exceptions to the Acting
Regional Director's alternate recommendation with
respect to Objection I. Accordingly, the alternative
recommendation to send Objection I to hearing is
hereby adopted. The Acting Regional Director fur-
ther recommended that, if a hearing were held on
Objection 1, such hearing should be consolidated
with a hearing already scheduled in Case II CA
8107. There were no exceptions to this recommenda-
tion, and we adopt it also.
ORDER
It is hereby ordered that Petitioner's Objection 2
be, and it hereby is, overruled.
II IS FURI IIhR ORDLERED that a hearing be held for
See also lonmouth Medical Center, 234 NLRB 328 (1978), which re-
centl) applied the randt criteria to find unobjectionahle certain markings,
In handprinting and ink, which were placed h one of the parties to the
election on a pamphlet prepared bh the Board which contains information
for voters in Board elections
lo 234 NI.RB at 329.
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of receiving evidence to resolve the issues
raised by Petitioner's Objection 1, and that such hear-
ing be consolidated with any hearing in Case I-CA-
8107, and held before an administrative law judge to
be designated by the chief administrative law judge.
In the event that the unfair labor practice proceeding
is disposed of prior to the hearing, a hearing officer
will be duly designated to hear the representation
matter.
IT IS FURTHER ORDERED that the administrative law
judge, or hearing officer, designated for the purpose
of conducting such hearing shall prepare and cause to
be served on the parties a report containing resolu-
tions of credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition
of said objection. Within the time prescribed by the
Board's Rules and Regulations, Series 8, as amended,
any party may file with the Board in Washington,
D.C., eight copies of exceptions thereto. Immediately
upon the filing of such exceptions, the party filing the
same shall serve a copy thereof on each of the other
parties and shall file a copy with the Regional Direc-
tor. If no exceptions are filed thereto, the Board will
adopt the recommendations of the administrative law
judge or the hearing officer.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 11 for the purpose of arranging
such hearing and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
1168