Dubie-Clark Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1974

209 N.L.R.B. 217 (N.L.R.B. 1974)

DUBIE-CLARK CO., INCORPORATED
Dubie-Clark Co., Incorporated and International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL-CIO, Local
#503, Petitioner. Case 10-RC-9563
February 25, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a stipulation for certification upon
consent election, a secret ballot election was con-
ducted on June 22, 1973, by the Regional Director of
Region 10 among the employees in the stipulated
unit described below. The tally of ballots furnished
the parties showed that of approximately 100 eligible
voters, 97 cast valid ballots, of which 50 were for,
and 47 against, the Petitioner. There were no
challenged ballots. Thereafter, the Employer filed
timely objections to conduct affecting the results of
the election.
In accordance with the Board's Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, the Regional Director conducted an
investigation and on July 12, 1973, issued and duly
served on the parties his Report on Objections
recommending that the objections be overruled and a
certification of representative be issued. Thereafter,
the Employer filed timely exceptions to the Regional
Director's report and a supporting brief.
Upon the entire record in this proceeding, 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 and
claims to represent certain employees of the Employ-
er.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the
following employees constitute an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees in-
cluding truckdrivers draftsmen and leadmen
employed by the Employer at its Toccoa, Georgia
operation, but excluding all office clerical em-
ployees, professional employees, guards, the
drafting supervisor and all other supervisors as
defined in the Act.
217
5. The Board has considered the objections, the
Regional Director's report , the Employer 's excep-
tions and brief , and the entire record , and finds merit
in the exceptions for the following reasons: On May
1, 1973, the Petitioner filed an unfair labor practice
charge in Case 10-CA-10134 alleging violations of
Section 8(a)(1) of the Act by the Employer. The
parties subsequently entered into an informal settle-
ment agreement which contained a nonadmission
clause . After approval of the settlement on June 7,
1973, the Employer posted a "Notice to Employees"
which clearly stated in large print that it was "posted
pursuant to a Settlement Agreement approved by a
Regional Director of the National Labor Relations
Board."
On June 19 , 1973, which was 3 days prior to the
election , the Petitioner sent a leaflet to all employees
stating, inter alia:
I am sure you have seen the OFFICIAL NOTICE
POSTED under the requirement of the Law
where the National Labor Relations Board, An
Agency of the United States Government, has
found that Dubie-Clark has violated your rights
under the Law. There are five (5) WE WILL
NOT statements . . . . Read them carefully be-
cause they are very serious violations of your
rights in a free and secret ballot election without
fear or intimidation.
Yes . . . EMPLOYEE DAY at your plant was
postponed by these violations . . . DO YOU
THINK THE CHARGES THE UNION FILED
WERE ERRONEOUS AND WITHOUT MER-
IT?. . . We feel that you know the merit of the
violations.
The statement in the Petitioner's leaflet that the
Board "has found that Dubie-Clark has violated
your rights under the Law" is inaccurate and
misleading. In actuality, the Board has made no such
finding, or rendered such a decision. In view of the
informal settlement agreement, the Board has neither
ruled upon the merits of the allegations made in the
unfair labor practice charge nor issued any decision
in that case finding that the Employer has violated
the law.
In Mallory Capacitor Company, 161 NLRB 1510, a
document was distributed by the union therein which
conveyed the impression that the Board had found
that the employer had violated the Act when, in fact,
only allegations of unfair labor practices had been
made in a complaint issued by the General Counsel.
We said:
We do not agree with the Regional Director's
conclusion that the circulated document did not
209 NLRB No. 21
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfere with a fair election. The Board is
necessarily concerned with the protection of its
procedures designed to provide fair elections. It
particulary looks with disfavor upon any attempt
to misuse its processes to secure partisan advan-
tage. And, plainly, we cannot sanction the
reproduction of a Board document which is
altered for campaign purposes and used under
circumstances where it is reasonably calculated to
mislead employees into believing that the Board
has judged the Employer to have violated Federal
law whereas, in truth, it has only made allegations
which have yet to be proved. We shall set aside
the election and order a new one. [Footnote
omitted.]
In other cases, we have consistently found similar
efforts to misrepresent Board documents and thereby
to secure partisan advantage to be grounds for
setting aside elections. Allied Electric Products, Inc.,
109 NLRB 1270; Rebmar Inc., 173 NLRB 1434,i and
Thiokol Chemical Corporation, 202 NLRB 434.
Our dissenting colleague has attempted to distin-
guish this case from our decision in Mallory, supra,
on the grounds that Mallory involved only the
circulation of a physically altered complaint. We do
not agree. In Mallory the Petitioner distributed its
own document to the employees which recited only
portions of the General Counsel's complaint. It also
contained a substantial misstatement of fact con-
cerning the Board's position with respect to the
alleged 8(a)(1) and (3) violations of the Act. The
document distributed in Mallory stated "Uncle Sam
says Mallory Bosses Guilty," when in fact the
Regional Director had only issued a complaint and
notice of hearing to determine in a trial before an
Administrative Law Judge whether there had been a
violation of the Act. In the present case the Petitioner
misstated and mischaractenzed the legal effects of an
informal settlement agreement approved by the
Regional Director when the Petitioner stated that the
Board "has found that Dubie-Clark has violated
your rights under the law." In actuality, no such
violation was found and no Board decision was
issued against Respondent. We, therefore, find that
not only the actual physical alteration of a Board
document, but any substantial mischaracterization or
misuse of such a document for partisan election
purposes is to be considered a serious misrepresenta-
tion.
As we stated in Rebmar, supra, "our concern is not
with the substance of the material . . . but with the
I Member Jenkins does not rely on Rebmar
2 Here "common sense and expertise . lead to the conclusion
that even if the allegedly offending statement might technically be within a
purist definition of 'misrepresentation ,' " it is not "a significant one nor one
impact such a partisan message . . . might have on
the freedom of choice of the voter." For this reason
we must guard against any intrusion, such as the
physical alteration or substantial mischaracterization
of a Board document, which might place the Board's
neutrality in question during the preelection cam-
paign period.
Moreover, the Board has traditionally encouraged
the settlement of disputes rather than prolonged
litigation of unfair labor practice allegations. We
continue to support this policy. If we were to
condone the misuse or misrepresentation of settle-
ment agreements for partisan election purposes, we
would discourage parties from voluntarily entering
into such settlements.
Accordingly, for the above cited reasons, we shall
set aside the election and order that a new one be
held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the election held
on June 22, 1973, be, and it hereby is, set aside and
that Case 10-RC-9563 be, and it hereby is, remand-
ed to the Regional Director for Region 10 for the
purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would adopt the
Regional Director's Report on Objections, overrule
the Employer's objections in their entirety, and
certify the Petitioner. I agree fully with the Regional
Director that there was, in fact, no material misrepre-
sentation here,2 particularly in view of the fact that
the notice referred to by the Petitioner's circular had
already been posted in the plant for 12 days. As
stated by the majority herein, the posted notice
clearly stated in large print that it was "posted
pursuant to a Settlement Agreement. . . ." Under
these circumstances, the Regional Director was fully
warranted in concluding that the employees were in a
position to evaluate the Petitioner's campaign litera-
ture.
Thus, even if viewed as a misrepresentation under
Hollywood Ceramics,3 I would find no.warrant in this
case for concluding that the Petitioner's conduct
herein could possibly have interfered with the
calling either for a hearing or for disregarding the secret ballot made by the
voters."
3 Modme Manufacturing Company, 203 NLRB No. 77 Hollywood
Ceramics Company, Inc, 140 NLRB 221
DUBIE-CLARK CO., INCORPORATED
employees' free choice. However, as I indicated in
footnote 6 of Modine Mfg. Co.,4 I would not, in any
event, adhere to the Hollywood Ceramics rule, and in
an appropriate -future case I shall express my views
on this in detail. But this not such a case because,
although the Regional Director so treated it and
found the conduct insufficient to interfere with the
election, my colleagues apparently view the single
innocuous statement in the Union's circular-that
the Board "has found that Dubie-Clark has violated
your rights under the Law"-as even more serious;
i.e., as such a falsity that it amounts to misuse of the
Board's processes or a misrepresentation likely to
mislead employees into believing that the Board
favors one choice or another. For, although they
have not specifically so characterized that statement,
and they refer to the misrepresentation of settlement
agreements , their rationale for setting aside the
election in this case is that "we have consistently
found similar efforts to misrepresent Board docu-
ments and thereby to secure partisan advantage to be
grounds for setting aside elections" and they con-
clude that this case involves a "substantial mischar-
acterization"5 of a Board document which "might
place the Board's neutrality in question."
Any conclusion that this is a misrepresentation of
Board documents or misleading as to the Board's
possible endorsement of one of the choices on the
ballot is totally unwarranted. Examination of the
cases cited in the majority opinion readily discloses
that they were concerned with the misleading effects
of the alteration of Board documents. Thus, they
involved circulating a seriously altered Board com-
plaint (Mallory Capacitor); adding a partisan message
to an official Board document so that it appeared to
come from the Board, thereby misleading the
employees into thinking that the Board endorsed one
of the parties to the election (Rebmar, Inc.); and
circulating a marked copy of a sample ballot bearing
an additional printed line reading "Do not mark it
any other way-Mark `YES' box only," thus indicat-
ing to the voters that the Board endorsed that choice
(Allied Electric Products). To suggest that the present
case is at all analogous to any of these cases is to
stretch them beyond all reason or logic-the quota-
tion from Mallory Capacitor is taken out of context
and its application here is totally unjustified.
The one other case cited by my colleagues, Thiokol
Chemical Corporation, was concerned with the
4 Supra
5 I note that the majority has apparently now adopted a term or
standard, new in this context, which is as yet undefined and serves merely to
complicate this aspect further
6 In this connection , I note that it is the general policy of the General
Counsel to recommend and accept a settlement agreement where the
investigation reveals evidence that would warrant issuance of a complaint. I
219
employer's circulation of an outdated copy of a
Board informational release which contained state-
ments of outdated rules concerning reinstatement
rights of economic strikers. In that case Members
Fanning and Jenkins found that the employer had
thereby interfered with the election, but Chairman
Miller dissented vigorously in language which is
equally applicable here:
This is not a case where a party has added
extraneous propaganda to a Board document
under conditions tending to suggest either directly
or indirectly to the voters that this Government
Agency endorses a particular choice... .
The action complained of herein was, at most a
misrepresentation. It did not involve a major
departure from the truth and occurred some 9
days before the election. Thus the Union had
ample opportunity to correct any misstatement of
the law which may have been involved. Further-
more. it is highly speculative, in my view, for this
Board to conclude that a failure by the Employer
to make clear a refinement in the governing law
as to the rights of replaced strikers . . . had such
a tendency to disturb the election results here as
to justify our setting aside the election.
Similarly here, there was nothing added to a Board
document, but merely a statement, at most, that the
Board had found that the Employer violated the Act
whereas, in fact, it had not done so.6 Further, here,
the employees were or should have been well aware
of the settlement of the unfair labor practice charge
since , as noted previously, the very notice to which
the Union referred had been posted for almost 2
weeks prior to the Union's statement which is under
consideration.
In sum , it is my view that the majority herein must
be viewed as unwarrantedly conjuring spectres of
discouraging the settlement of unfair labor practice
cases 7 while they give only lip service to the principle
that the Board does not police the preelection
propaganda of the parties and will not set aside an
election unless there is conduct which clearly puts in
jeopardy the integrity of our election.8 As stated
earlier, I would adopt the Regional Director's report
and certify the Petitioner.
would assume, therefore , that the Regional Director had determined that a
prima Jade case existed of a violation by the employer.
4 I am, of course , in full accord with my colleagues as to the desirability
of encouraging such settlements.
R See the lengthy discussion by Chairman Miller and Members Fanning
and Jenkins in Modine Manufacturing Company, supra