Cranbar Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1968

173 N.L.R.B. 1287 (N.L.R.B. 1968)

CRANBAR CORPORATION 1287
Cranbar Corporation and Penso Corporation and Siu
de Puerto Rico , afiliada a Seafarers International
Union , Atlantic, Gulf, Lakes and Inland Waters
District , AFL-CIO Petitioner .Case 24-RC-3403
December 16, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification and
Consent Election, an election by secret ballot was
conducted in the above-entitled proceeding on March
8, 1968, under the direction and supervision of the
Regional Director for Region 24 among the em-
ployees in the appropriate unit. At the conclusion of
the balloting, the parties were furnished a tally of
ballots, which showed that of approximately 728
eligible voters, 621 cast valid ballots, of which 342
were for, and 279 were against, the Petitioner, 49
ballots were challenged and 5 ballots were void. The
challenged ballots were not sufficient in number to
affect the results of the election. Thereafter, the
Employer filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Labor
Relations Board Rules and Regulations, the Regional
Director conducted an investigation and on August 5,
1968, issued and duly served upon the parties his
Report and Recommendations on Objections, in
which he recommended that the objections be over-
ruled in their entirety and that the Union be certified
as bargaining representative of the employees in-
volved. Thereafter, the Employer filed timely ex-
ceptions to the Regional Director's Report and a
supporting brief.
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 powers
in connection with this case to a three-member panel.
Upon the entire record in this case, 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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, 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 em-
ployed by the Employer at its two factories
(Cranbar and Penso) at Ponce, P.R., including plant
clerical employees and excluding all office clerical
employees, executive and professional personnel,
guards and supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's Report, the Employer's exceptions and brief,
and the entire record in this case, and hereby makes
the following findings
There is no substantial dispute as to the facts set
forth in the Regional Director's Report. According to
the Report, on the afternoon of March 7, 1968, the
day before the election, Justo Malave, the Employer's
Industrial Relations Director, spoke to the employees
over a local radio station stating, inter al:a, that "The
official position of management is that we don't want
this Seafarers union-the SIU-or any other union
here in Cranbar Corporation and Penso Corporation.
That's why we'll object by any legal means to having
a union in this plant . . . " He then explained the
process of voting in the election and urged all the
employees to vote against the Union.
Later that evening Jose Ramos, Director of Or-
ganizing for Petitioner, addressed the employees over
a different local radio station. During this speech he
referred to Malave's speech as follows.
... and following the advice which Mr Malave gave
you, I tell you, brothers, that tomorrow is possibly
the last chance you have to be members of a union.
Yes-Mr. Malave also told you that tomorrow
would possibly be your last chance to be members
of a union. What he meant was to vote `yes' and
that is what Mr. Ramirez and we all have been
telling the workers that the supervisors and other
members of the management cannot say openly
here that you should vote in favor of the union,
but that you should notice that in their hearts in
their feelings, they want you to belong to a union.
It was for this that Mr. Malave told you `remember
friends, that tomorrow will be the last occasion
that you have to belong to a union-and for you to
vote for the one who gives you the more benefits.'
Malave says this because he understands that when
you receive a raise in salaries, he too will receive a
raise in salary; when you receive more holidays
with pay Mr. Malave will have more holidays to
stay at home. When the Company gives you, as it is
being given to the workers of Uniroyal, a Christmas
bonus, Mr. Malave will also be given a Christmas
bonus and it is for this that at the end of the
program Mr. Malave told you and I again emphasize
this, `Remember that tomorrow will be the last day
that you can belong to a union.'
... So that at the end of this campaign the manage-
ment has told you, not directly, but indirectly, to
vote yes, to organize yourselves, form your union,
do what many workers of Puerto Rico have done
173 NLRB No. 200
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and are doing, organizing themselves as labor
organizations.
He also spoke of the Banco Obrero de Puerto Rico
(Worker's Bank) which was established by the Puerto
Rican government for the benefit of the working class
of Puerto Rico. Just prior to Ramos' speech, Angel
Ramirez, organizer for the Petitioner, told of the
Union's medical plan, stated that the Mayor of
Penuelas (a small nearby town) was speaking in favor
of the Union to the Employer's employees living in
Penuelas.
The Employer's allegations in objections 6(a), 6(b),
and 6(c), and 7 relate to Ramos' speech: objection
6(a) alleges that Ramos misrepresented the Union's
health plan; objection 6(b) alleges that Ramos' claim
that the Mayor of Penuelas spoke in favor of the
Union was false; objection 6(c) alleges that Ramos
misrepresented and deliberately misconstrued
Malave's speech to the employees; and objection 7
alleges that Ramos misrepresented the facts and law
concerning the Worker's Bank.'
The Regional Director recommended that all of the
Employer's objections be overruled and that the
Union be certified as bargaining agent of the Em-
ployer's employees in the unit found to be appro-
priate. We agree with and adopt the Regional Direc-
tor's recommendations as to objections 6(a), 6(b),
and 7 because in our opinion the Employer's ex-
ceptions raise no material or substantial issues of fact.
However, we do not agree with the Regional Direc-
tor's recommendation that objection 6(c) be over-
ruled. On the contrary, we find merit in the Em-
ployer's exceptions thereto, that the Union materially
misrepresented the Employer's position and that such
misrepresentations were substantial and tended to
influence the outcome of the election.
The Regional Director found that Ramos' speech
was inaccurate, contained misstatements, and mis-
represented the intent of Malave's speech but con-
cluded, nonetheless, that Ramos' speech was mere
campaign propaganda, and that the employees could
easily recognize it as such, because Malave had so
clearly and emphatically stated the Employer's op-
position to unionization of its plant.
It is a matter of speculation, however, as to the
number of employees who heard Malave's speech
made earlier in the day, would remember sufficient of
its details, and be in a position to recognize that
Ramos was misquoting and misconstruing Malave's
statements. Conceivably some, or many, employees
may not have heard Malave's speech at all as it was
broadcast on a Thursday afternoon at a time when
most of the employees were likely to be at work, and
there is nothing in the record to show that the speech
was heard in the plant; while Ramos' speech was
broadcast over a different radio station at a time
when the employees were off work and likely to be at
home. But even if after a lengthy election campaign,
employees generally become aware of the Employer's
strong opposition to the Union, yet Ramos' speech
lent itself to the belief that Malave had confided to
Ramos what he could not express publicly, that is,
that Malave and others among company management
were in favor of the Union because they would
ultimately benefit from the gains the Union would
obtain for the employees. That implication in Ramos'
speech was without foundation, but Ramos' speech
had a sufficient ring of sincerity which could easily
mislead employees into believing that his representa-
tions were truthful.
The Board has said 2
As a general rule, absent coercion or fraud, the
Board will not undertake to police or censor
election propaganda. However, where a party de-
liberately makes material misrepresentations of fact
in circumstances in which employees are unable to
evaluate the assertions for truth or falsity, the
Board has held that legitimate bounds of campaign
propaganda have been exceeded and has set aside
the election.
The Board has further stated 3
We believe that an election should be set aside only
where there has been a misrepresentation or other
similar campaign trickery, which involves a sub-
stantial departure from the truth, at a time which
prevents the other party or parties from making an
effective reply, so that the misrepresentation,
whether deliberate or not, may reasonably be ex-
pected to have a significant impact on the election.
But even where a misrepresentation is shown to
have been substantial, the Board may still refuse to
set aside the election if it finds upon consideration
of all the circumstances that the statement would
not be likely to have had a real impact on the
election. For example, the misrepresentation might
have occurred in connection with an unimportant
matter so that it could only have had a de minimis
effect. Or, it could have been so extreme as to put
the employees on notice of its lack of truth under
the particular circumstances so that they could not
reasonably have relied on the assertion. Or, the
Board may find that the employees possessed inde-
pendent knowledge with which to evaluate the
statements.
We believe that the Petitioner has exceeded the
bounds of permissible propaganda in the present case.
1 During the course of the investigation the Employer , with the
Regional Director 's approval , withdrew objections 1, 2, 3, 4 , and 5, and
that part of objection 8 which referred to these objections , but reserved
the part of objection 8 which referred to objections 6(a), (b), (c), and 7.
2 Cleveland Trencher Co, 130 NLRB 600.
3 Hollywood Ceramics Co., 140 NLRB 221
CRANBAR
Ramos' version of Malave's speech, which bore no
resemblance to the speech as it was made by Malave,
was for the purpose of influencing the employees to
vote in favor of the Petitioner. This speech, mis-
representating, as it did, the attitudes of the Em-
ployer's management personnel toward unionization
and implying that these personnel had publicly op-
posed the Union under pressure of the Employer, was
substantial and of enough importance to affect
materially the votes cast in the election. We are
unwilling, on the record before us, to find that the
employees were able to recognize the speech by
Ramos as election propaganda. Furthermore, Ramos'
speech, made on the eve of the election, did not
permit enough time for the Employer to make an
effective reply before the election.
Under all of the circumstances, we hereby sustain
the Employer's objection 6(c). Accordingly, we shall
4 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 24 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director . 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 Excelsior Underwear Inc., 156 NLRB 1236
However, in Wyman-Gordon v N L.R.B., 397 F. 2d 394 (C.A. 1), the
Court of Appeals for the First Circuit , while indicating approval of the
substance of the Board's Excelsior decision , held that the requirement
of the furnishings of an eligibility list is void because it was not adopted
CORPORATION 1289
set aside the election and direct that a second election
be held.
ORDER
It is hereby ordered that the election conducted
herein on March 8, 1968, be, and it hereby is, set
aside.
[Direction of Second Election omitted from pub-
lication. ]
MEMBER BROWN, dissenting:
Unlike my colleagues , I would adopt the Regional
Director's recommendations essentially for the rea-
sons given by him that all the objections be overruled
and certify the Petitioner as the collective -bargaining
agent of the Employer 's employees in the unit found
to be appropriate. a,
in conformity with the provisions of section 4 of the Administrative
Procedure Act (5 U.S.C. Sec . 553). While noting our disagreement with
Wyman-Gordon , we shall in deference to the First Circuit modify our
procedures in elections conducted within the territorial jurisdiction of
that Circuit where an employer refuses to furnish the eligibility list In
such cases , until the propriety of the Board 's procedure in adopting the
Excelsior requirement has been finally determined , we shall not issue a
subpena for the production of the list, nor shall we seek Court
enforcement of the requirement ; and upon the filing of timely ob-
jections on the ground an election was conducted without the list, the
objections will be held by the Regional Office until such time as the
propriety of the Board's procedure in adopting the Excelsior rule has
been finally resolved.