Flager Memorial Park

National Labor Relations Board - Board Decisions

Feb 25, 1980

247 N.L.R.B. 1397 (N.L.R.B. 1980)

FLAGLER MEMORIAL PARK
Flagler Memorial Park, Miami Memorial Associa-
tion, Dade Memorial Park, Mirror Lake Corp. and
District 2A, Transportation, Technical, Warehouse,
Industrial and Service Employees Union, affiliated
with District 2, M.E.B.A.-A.M.O., AFL-CIO.
Case 12-CA-7650
February 25, 1980
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 30, 1977, the National Labor Rela-
tions Board issued its Decision and Order in this case,'
in which it found that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by refusing to bargain with the Union,
which had been certified by the Board on January 6,
1977, following a representation election. On applica-
tion for enforcement, the United States Court of
Appeals for the Fifth Circuit denied enforcement, and
remanded the case to the Board for a hearing to
determine whether the Union is still in existence and
whether the Union's furnishing of a fragmentary copy
of its constitution to Respondent constituted a sub-
stantial misrepresentation which could have influ-
enced the outcome of the election.' On August 17,
1979, the Board, accepting the remand as the law of
the case, issued its Order reopening record and
remanding proceeding to Regional Director for hear-
ing, in which it ordered, inter alia, that further
proceedings be held before an administrative law judge
on the issues remanded by the court's opinion. On
November 16, 1979, Administrative Law Judge Rob-
ert W. Leiner issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the Union
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the court's
opinion and the exceptions and briefs and has decided
to affirm the rulings, findings,' and conclusions' of the
Administrative Law Judge, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board reaffirms the Order previously issued
in this case as reported at 232 NLRB 660, and hereby
247 NLRB No. 204
orders that the Respondent, Flagler Memorial Park,
Miami Memorial Association, Dade Memorial Park,
Mirror Lake Corp., Dade County, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in said Order.
232 NLRB 660 (1977).
! 598 F.2d 942 (5th cir. 1979).
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Prducrts. Inc.. 91 NLRB 544
(1950). enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' We find, in agreement with the Administrative Law Judge, and for the
reasons set forth by him, that the Union's furnishing Respondent a
fragmentary copy of the former's constitution, even assuming, arguendo, as
we have, that it constituted a substantial misrepresentation, does not require
the election in the underlying representation proceeding to he set aside. As
found by the Administrative Law Judge, the misrepresentation did not have a
real impact on the election because there was no showing that it was material
to the issue of whether employees wanted the Union as their collective-
bargaining representative. Furthermore, since Respondent was aware of the
misrepresentation almost a month before the election, it appears that
Respondent had an adequate opportunity to correct the misrepresentation and
reply to it. We rely on both of these findings in adopting the Administrative
Law Judge's recommendation to overrule this objection. However, given these
findings, it is unnecessary to pass on the propriety of the Administrative Law
Judge's observation that Respondent could have requested, or should have
requested, a postponement of the election. Finally. we agree that the
misrepresentation did not require, as a matter of law, that the election be set
aside without further inquiry. Like the Administrative Law Judge, we
conclude that the court would not have remanded the case for an evidentiary
hearing and decision had it deemed the misrepresentation to be objectionable
per se. The Administrative Law Judge, however, deferred final ruling on this
issue to the Board and the court on the ground that the issue was outside the
scope of the remand.
' The Administrative Law Judge, instead of recommending that the initial
period of certification be construed as beginning on the date the Respondent
commences bargaining in good faith with the Union. erroneously recommend-
ed that the certification year be extended to the date Respondent commences
bargaining with the Union. Our Order directs that the certification year
begins when Respolndent commences bargaining.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT W. L.EINER, Administrative Law Judge: On
September 30, 1977, the National Labor Relations Board
issued a Decision and Order (232 NLRB 660) in which it
found that, commencing on or about March 10, 1977, the
Flagler Memorial Park, Miami Memorial Association, Dade
Memorial Park, Mirror Lake Corp., herein called Respon-
dent, violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by refusing to bargain with the
District 2A, Transportation, Technical, Warehouse, Indus-
trial and Service Employees Union, affiliated with District 2,
M.E.B.A.-A.M.O., AFL-CIO, herein called the Union or
Petitioner, which had been certified as the exclusive bargain-
ing representative by the Board on January 6, 1977, in Case
12-RC-5109, following a July 28, 1976, election in a unit of
Respondent's employees found appropriate. Respondent
filed timely objections to the election alleging, inter alia, that
the Union had deprived the voters in the unit of essential
information by providing Respondent with an incomplete
copy of its constitution. The Regional Director overruled all
1397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's objections, did not provide a hearing
thereon, and was thereafter the subject of Respondent's
timely exceptions to the subsequent Regional Director's
Report on Objections. As noted above, on January 6, 1977,
the Board issued its Decision and Certification of Represen-
tative, adopting the Regional Director's findings in his
Report on Objections and certified the Union.
On April 29, 1977, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region
12, issued a complaint and notice of hearing alleging that
Respondent had engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act by refusing,
commencing on or about March 10, 1977, to bargain
collectively with the Union as the exclusive bargaining
representatives notwithstanding the Union's request there-
fore. On May 10, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations therein. On May 10, 1977, the General Counsel
filed directly with the Board a Motion for Summary
Judgment to which Respondent filed a response.
In both its answer to the complaint and its response to the
General Counsel's motion, Respondent denied, inter alia.
that the Union was a labor organization within the meaning
of Section 2(5) of the Act, contending that, at the time it
stipulated to the Union's status as a labor organization in the
underlying representation case, it had "every right to
assume" that the Union was in compliance with certain
Department of Labor statutory requirements for labor
organization status, and that it had discovered, subsequent
to its stipulation in the representation hearing, that no
employees participated in the Union to the extent required
by Section 2(5) of the Act. It alleged that this state of facts
entitled it to a hearing on the question of the Union's status
as a statutory labor organization, the Board (232 NLRB 660,
661, fn. 5) noted that Respondent had not set forth any
evidence in support of its conclusion as to the absence of
employee participation in the Union. The Board's Decision
and Order granting General Counsel's Motion for Summary
Judgment, as noted above, issued on September 30, 1977.
The Board thereafter filed with the United States Court of
Appeals for the circuit an application for enforcement of its
Order.
On July I i, 1979, the court of appeals denied enforcement
of the Board's Order, and remanded the proceeding to the
Board for an evidentary hearing and the entry of findings
upon the remanded matters (N.L.R.B. V. Flagler Memorial
Park. et al., 598 F.2d 942).
On August 17, 1979, the Board, in conformity with the
court's direction, issued an Order reopening record and
'The court of appeals held that the furnishing of a "fragmentary copy" of
the constitution could be a "misrepresentation" requiring the elclion to he set
aside
The ollywoMd Ceranics rule (140 NLRB at 224) is that:
. an election should be set aside only where there has been a
misrepresentation or other similar campaign trickery, which involves a
substantial departure from the truth, at a time which prevents the other
party or parties from making an effective reply, so that the misrepresen-
tation whether deliberate or not. may reasonably be expected to have a
significant impact on the election.
As the Court of Appeals for the Fifth Circuit observed ht N.LR.B. v. Mr.
fineh Inc.. 516 F.2d 60 63 (1975): "the test is whether false or misleading
statements had the effect of interfering with a free choice of bargaining
representatives . . . The burden of proving such interference is of course on
the objecting party."
remanding proceeding to Regional Director for hearing on
two issues: (I) on the issue concerning the Union's furnish-
ing the fragmentary constitution' to Respondent; and (2) on
Respondent's assertion that the Union is no longer in
existence.
In remanding the case for hearing, the Board, iter clia.
ordered that the test set forth in lollywood Ceramics Inc..
140 NLRB 221 (1962),: be applied in determining whether
the election held in Case 12-RC-5109 be set aside; that a
record be made before a duly designated administrative law
judge; that the Regional Director for Region 12 arrange a
hearing and issue a notice thereof; and that, at the
conclusion of such hearing, the administrative law judge
prepare and serve on the parties a Supplemental Decision
containing findings of fact based upon the evidence received,
conclusions of law, and recommendations.
On August 20, 1979, the Regional Director for Region 12
issued a notice of hearing. Pursuant thereto, a hearing in this
matter was held before me in Coral Gables, Florida, on
several dates commencing August 30, 1979, and ending on
October 16, 1979. At the hearing, all parties were represent-
ed by counsel and were given full opportunity to call, to
examine and cross-examine witnesses and to argue orally on
the record. Subsequent to the close of the hearing, Respon-
dent and the Union filed briefs which have been carefully
considered.
The Evidence
I. RSI'ONl)li'NT'S ASSI'RTION HAT 'I'HI UNION IS NO
I.ONGER IN I:XIST'NCI OR HAS MERGil:)
As above noted, on July 11, 1979, the court of appeals,
denying enforcement of the Board's Order, remanded, iter
alia, on Respondent's assertion that the Union was no longer
in existence. The court at the same time denied Respondent's
motion, filed in the court, to stay further proceedings until
that issue be resolved, but, rather, remanded the matter for
hearing.'
In support of the motion to stay proceedings, counsel for
Respondent, Alan A. Bruckner, Esq., had submitted his
affidavit in which he represented to the court that he had
telephoned the Union at its Dania, Florida, address and
telephone number, and was connected, by a lady answering
the telephone, to a Mr. McKay, who identified himself as the
business agent of District 2, M.E.B.A. (as distinguished from
District 2A, the Union herein).4 The affidavit states that
Bruckner asked McKay if District 2A, Transportation,
Technical, Warehouse, Industrial and Service Employees
'On August 23, 1979, I week before the opening ofthe hearing before me,
Respolndent filed a motion with the office of the Chief Administrative L.aw
Judge, which motion was then directed to me for ruling. for an order
instructing the Regional Director to affirmatively investigate the issue of the
Unionl' statutory labor organization stiltus. I denied the motion, ad continue
in that ruling. It is not up to the ioard's staff to seek out evidence that
warrants setting aside an election. SurhwIslcer Portland CnetC Co. v.
N.L.R.B.. 407 F.2d 131 (5th Cir. 1969): N.L.R.B v. .. Van Storage. Inc:.
297 F.2d 74, 76 (5th Cir. 1961); International Union o Eclectrical. Radio and
Machil Workers. A'L-Cl0lLiry C Cach Co.. Inc.. v. N. LR.B.. 418 F.2d
1911 (D.C. Cir. 1969): N.L.R.B. v. e'nnexse Packers Inc.. rosry Morn
Division. 379 F.2d 172 (6th Cir. 1967), cert. denied 389 U.S. 958.
' District 2A is "affiliated with" District 2. the alleged parent organization
of District 2A.
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FLAGLER MEMORIAL PARK
Union, was still in existence and that McKay said: "IN]o, it
was not, that it had been 'consolidated' with District 2,
M.E.B.A.-A.M.O.. AFL-CIO." The Bruckner affidavit
continues: "Upon inquiry, he said that it had occurred some
time ago." The affidavit is silent on the question of whether
there was any conversation between Bruckner and the lady
who answered the telephone and transferred him to "a Mr.
McKay" in response to Bruckner's request for information
concerning District 2A.
In his testimony as a witness, Bruckner testified that,
when he asked the lady who answered the telephone to speak
with a representative of District 2A, the lady said: "District
2A isn't here anymore. I will give you to Mr. McKay."
Bruckner testified that in speaking with McKay, he asked
him, "Where is District 2A?" and McKay answered: "It is
not here anymore. It has been consolidated with District 2."
When Bruckner asked McKay when this had taken place,
McKay said, "sometime ago."
Micheal McKay, a vice president of District 2 (not 2A),
while not remembering the date of the conversation, admit-
ted that it occurred, recalled that Bruckner asked him if he
worked for District 2A, but testified that he, McKay,
answered that he used to work for "TEA" before it was
"merged into 2A." and that he was now a representative of
District 2 in Dania. McKay's testimony was unclear
whether Bruckner asked him if he was representing 2A, but
McKay testified that he told Bruckner that he was not, and
that he was a district 2 patrolman. McKay was clear in his
recollection that Bruckner asked him if District 2A was in
existence, and that he told him that it was; and that he did
not tell Bruckner that District 2A had been consolidated
with District I; rather, he testified that "TEA' . . . and all
those unions were consolidated into 2A." Bruckner thereaf-
ter testified that in his conversation with McKay, McKay
never mentioned TEA (i.e., Transportation Employees
Association ).'
The Union, apart from denying, through Michael
McKay's testimony, the substance of the above conversation
with attorney Bruckner, adduced uncontradicted testimony
from both Gordon Spencer, vice president (southeast region)
of District 2A, and Raymond T. McKay, president of both
District 2 and District 2A, and also submitted documentary
evidence which showed, inter alia, that District 2A had, and
has, its own constitution; represents various units of employ-
ees who are not licensed deck or engineering officers (which
two classifications are the objects of organization and
representation by District 2, alone); holds meetings of
members; executes and maintains collective-bargaining
agreements relating to wages, hours, and conditions of
employment of units of employees in various States of the
United States; elects officers of District 2A, many of whom
are not also officers in District 2; and maintains its own
treasury, pension plan, and health plan different from
The preamble or the constitution of District 2A (Union Exh. I) slates.
inter alia. that District 2A "has been created and formed by the merger and
affiliation with it of Transportation Employee Aociatiot. Shoreside
Supervisors Union United Dental Workers, Welder and Iturners Union, all
of which were former direct affiliates of District 2, Marine Engineers
Ikneficial Axssoialion-Associated Maritime Officers. AFL-CIO. There is no
dispute that "TEA" rcfern to Transporlation Employees Association.
( On the basis of the testimony of Raymond McKay (father of Micheal
McKay). president of both Districts 2 and 2A, I find and conclude that
Michael McKay. though all employee and officer of only District 2. acted for
I)istricl 2A i, this conversation
District 2. The evidence also shows that members of District
2A do not vote in District 2 union elections, unless they
independently are members, and vice versa; nor do the two
organizations use common membership application cards.
At the present time, District 2A represents about 2,000
employees under collective-bargaining agreements covering
units of rental agents (Hertz Corporation), Federal canteen
employees (Fort Hamilton, New York), truckdrivers per-
forming services for the Ford Motor Company (C.P.D.,
Inc.), and maintenance and building service employees
(Rosedale Management, Inc.). In addition, District 2A files
separate labor management reports with the Department of
Labor as distinct from those reports filed by District 2.
The uncontradicted evidence shows that there have been
union meetings of District 2A members in Brooklyn, New
York, in 1977 and 1978, and that, at the present time,
District 2A is engaged in organizing employees in the State
of Florida. In addition, it has a collective-bargaining
agreement with Progressive Drivers Services, Inc., in Jack-
sonville, Florida, covering a unit of drivers, which agreement
is administered from District 2A's home office in New York
City.
It appears that, in a short period in 1977, the Union was
not actively engaged in organizing activities in Florida and
did not have an agent in Florida other than a trustee of
District 2A looking out for its affairs. At the present time,
however, it is engaged in organizing in Florida and main-
tains, as it has always maintained, its office in Dania, Florida
in the same building with District 2. District 2A, according
to the admission of its president, Raymond McKay, is given
extensive financial help by District 2, its parent organization.
In fact, aside from paying for its own stationery and
telephone, most or all of the Flolida expenses, including
rent, of District 2A are paid for by District 2. Common
officers of the two organizations are paid from the payroll of
one or the other, or neither, but not from both.
Respondent did not submit evidence to show that any
formal or informal merger had taken place other than the
above conversation between Bruckner and McKay; nor did
it submit evidence that District 2A no longer exists, As I
understand Respondent's argument (Resp. Br., p. 7, et seq..
District 2A has never had an existence apart from District 2
and is a mere paper image of District 2. The evidence fails to
support that position.
On the basis of the above evidence, I find it unnecessary to
resolve the credibility issue raised by the Bruckner-McKay
conversation in or about February 1979. I have noted that
Bruckner expanded somewhat on his prior affidavit in his
recollection, given as testimony on the witness stand, with
regard to conversations with the female office clerical when
she first answered the telephone.' Rather, the credited
testimony of Gordon Spencer and Raymond T. McKay and
uncontradicted documentary evidence show that the Union,
Neither party called Ihe office clerical although she is still employed by the
Unionl. On the one hand. if she recalled the event at all. her testimlny. if in
support lof McKay. might have denied her conversation with Bruckner insofar
as she allegedly told Bruckner that Local 2A no longer existed. On the other
hand. attorney ruckner at the hearing. made considerable efforts to
determine from the Union the name and location of the office clerical with
whom he spoke in order to secure her as a witness. Hec did not thereafter
secure her testimony although the Union revealed her identity and wherea-
houts. InI view of this equal availabilit. and in the absence (of other
(Continucd)
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 2A, is an organization having a constitution and
employees of employers as members, which represents these
employees in collective bargaining, maintains collective-bar-
gaining contracts covering units of employees in several
States of the United States, has its own independent treasury
and pension and welfare plans, submits independent reports
to the Department of Labor under the Labor-Management
Reporting and Disclosure Act of 1959, and has a slate of
officers which is periodically elected by its members at union
meetings. That it may not have been, or even continues to
be, inactive in organizing employees in Florida, that many of
its officers are officers of District 2, and notwithstanding
that District 2 pays many of its expenses does not detract
from District 2A's status as a independent labor organiza-
tion although an affiliate of District 2. Most particularly, it
is uncontroverted that members of District 2, unlike mem-
bers of District 2A, are licensed personnel aboard ships.
On the basis of the above affirmative evidence, I find and
conclude that, regardless of the Bruckner-McKay telephone
conversation, District 2 is neither a successor to, nor alter
ego of, District 2A, and that District 2A has not been
merged into District 2 and continues to exist as an
independent and viable labor organization within the mean-
ing of Section 2(5) of the Act. N.LR.B. v. Cabot Carbon
Company and Cabot Shops. Inc., 360 U.S. 203 (1959).
II. THE OBJECTION BASED ON THE UNION'S SUBMISSION
OF AN EXPURGATEI) VERSION OF ITS CONSTITUTION
A. The evidence shows that the instant petition for
certification in Case 12-RC-5109 was filed by District 2A
on May 29, 1976, and that on June 18, 1976, Averill G.
Marcus, Esq., a lawyer of 3 or 4 years' experience associated
with the Bruckner law firm in Miami, Florida," retained to
represent Respondent's interest, visited the Miami office of
the United States Department of Labor for a copy of District
2A's constitution and found none there. On June 21, 1976,
Respondent and District 2A entered into a Stipulation for
Certification Upon Consent Election in order to expedite the
election. On that day, June 21, Marcus asked the Union's
agent, William Paredes, for a copy of the District 2A
constitution, and Paredes gave him the fragmented constitu-
tion (Resp. Exh. 2).
On June 28, 1976, Marcus wrote a letter to the Depart-
ment of Labor in Washington (Resp. Exh. 3) in which it
sought District 2A's bylaws and the "reports" of District 2A
(LM-I and LM-2) required to be filed under the Labor-
Management Reporting and Disclosure Act of 1959 (29
U.S.C. Sec. 431, et seq. ). In addition, Respondent sought a
circumstances. I draw no inference from the failure of either party to call her
as a witness. Hirchner Man uJacturing. 243 NLRB No. 174 (1979): Local 259.
United Automobile. A.4erspace. and Agricultural Implement Workers of'
America (Aherton Cadillac. Inc.). 225 NLRB 421. 422(1976).
· Bruckner, Greene & Manas. P.A.
'On the last day of the hearing. October 16. 1979, when Attorney Bruckner
sought an extentioll of time and an adjournment to recall Marcus. I denied
that application and closed the hearing. Marcus had not been subpenaed to
reappear notwithstanding that there had been an adjournment of more than 2
weeks in which a subpena could have been obtained for his attendance. and
notwithstanding that the substance of Marcus' prior testimony was known for
5 weeks. In any event. Bruckner made an offer of proof with regard to the
further testimony Respondent would have elicited from Marcus had he
testified that Marcus did not actually see the unexpurgated version of the
constitution on July 27 when it came into the law office and. in any event,
copy of District 2's constitution and bylaws and filings of its
reports under the LMRDA. In this communication, Marcus
noted that he was able to obtain a copy of District 2A's
constitution "from other sources."
Having not thereafter received that information from the
Department of Labor in Washington, Marcus, on July 17,
1978, telegraphed the Department of Labor (Office of
Labor-Management and Welfare Pension Reports) and
requested immediate dispatch to him of this information in
view of the approaching July 28, 1976, NLRB election.
On July 27, 1 day before the July 28 election, the
Department of Labor, through the mails, delivered to the
Marcus law office, inter alia, an unexpurgated version of the
District 2A Constitution (Union Exh. 1). Marcus testified as
a witness called by Respondent:
I know we received it the day before the election
because we had discussed it and decided we could not
possibly use it in the campaign because we would run
afoul of the 24-hour rule' [Emphasis supplied.]
Notwithstanding that Marcus received and discussed the
unexpurgated version on the day (July 27) before the
election, he did not attempt to seek a postponement of the
election by contacting the Labor Board or its regional office,
nor did he seek to visit or otherwise contact the employees
with the information contained in the unexpurgated version
of the constitution. Lastly, the evidence shows that the
election was held in three separate locations commencing in
the morning of July 28, 1976. Marcus and Bruckner assert
that they failed to contact the Labor Board seeking a
postponement of the election, in view of the receipt of the
new material in the unexpurgated version of the constitu-
tion, because they did not believe that a postponement would
be granted. Further, they urge that they did not seek to
contact and advise the employees of the new material
because not only was there the "24-hour" rule in Peerless
Plywood Company, 107 NLRB 427 (1953),"' which Respon-
dent was afraid of violating, but there was simply insufficient
time for the Respondent to properly visit the employees at
the polling sites or at their homes in order to tell them of the
new material which had been furnished to the Respondent.
A comparison of the full constitution (Union Exh. 1) with
the expurgated version given to Respondent on June 21
(Resp. Exh. 2) shows that, aside from the I-page, unnum-
bered "Preamble", the full constitution is a printed docu-
ment of 23 consecutive pages, whereas the expurgated
version, aside from the same I-page, unnumbered preamble,
contains 15 pages ending on page 17. In the expurgated
version, there is no page I , and the dangling language and
even if he did. Marcus could not contact lawfully--or in fact-the employees
with regard thereto. Such offered testimony would necessarily. it seems to me.
contradict the prior Marcus testimony in the text above if. indeed. as
previously testified. he "discussed it" on the day before the election. If he
"discussd" it, I conclude he read it. That dircuvsion would necessarily had to
have been on the day before the election because the unexpurgated version.
according to Marcus, could not be used because he would run afoul of the
"24-hour rule." The conclusion. infra, reached in this Supplemental Decision.
however, makes the proffered testimony immaterial. Further. on a conclusion
of irrelevancy, I also denied Respondent the opportunity to prove that, about
I month after the instant election (i.e.. around August 1976). through its use
of the unexpurgated constitution, Respondent succeeded in having the
employees of another employer reject District 2A as their representative in a
Board-conducted election. I continue in that ruling.
"'Cf. VL.R.B. v. Mr. Fine, Inc.. 516 F.2d 60. at fi. 4.
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FLAGLER MEMORIAL PARK
sentence structure appearing at the bottom of page 10
(dealing with "Duties of Officers, Representatives, and
Committees") finds no correspondence on page 12, i.e., the
last words on page 10 are: "The President, or his designate,
shall decide when any strike shall begin. The Negotiating
and Strike .... " The next matter appears on page 12 in a
new paragraph headed "Article XII," relating to the
nomination and election of officers. In addition, the expur-
gated version contains no page 15. Furthermore, the
expurgated version, unlike the full version, contains no
reference to "Penalties" relating to union members found
guilty of violating the provisions of the constitution (art.
XIV, p. 18): nor any reference for instance, to income of
the Union (art. XVII, p. 19) or quorums for voting in a
union election (art. XVIII, p. 20). Although the word
"fines" is mentioned in several places in the expurgated
version (pp. 2, 4, and 17) possessed by Marcus since June 21,
there is no inclusion in the expurgated version of any
declaration or definition of when "fines" can be imposed.
In support of its assertion that the Union's service upon it
of a fragmented constitution constituted an act of misrepre-
sentation of the Union's powers and functions (when the
subject matter of that version was lawfully communicated by
Respondent to its employees), and that the matters omitted
from the expurgated version prevented a full discussion
between Respondent and its employees, Respondent called
and examined two unit employees. These employees were
elderly, black, illiterate persons." The evidence shows that a
day or 2 before they testified in the hearing before me in
1979, Respondent's attorney, William S. Rubenstein, Esq.,
read to them, from the full version of the constitution, those
elements which did not appear in the fragmented version,
including wages and qualifications of officers, balloting
procedures, degrees of punishment for violation of the
constitution, fines, strikes, voting quorum, and majority
votes. After Rubenstein read to groups of employees from
the full version, he then called them separately into a room
and asked each of them whether those provisions, read to
them from the unexpurgated version of the constitution, had
they been aware of them, would have had an "impact" on
their 1976 voting. Mr. Rubenstein repeated the same
procedure with the employees on the witness stand and
asked the employees whether, if the expurgated material had
been presented to them 3 years before, prior to the 1976
election, it would have had an impact on their voting. They
testified that the expurgated material would have had a big
effect on how they voted, especially the imposing of fines by
the Union if a union member crossed the picket line. None of
this testimony or offers thereof was presented to the
Regional Director during his investigation of Respondent's
objections.
At least one of the witnesses did not know what bylaws or
a union constitution was.
I give the testimony no weight regardless of its materiali-
ty. The answers on the witness stand were elicited by Mr.
Rubenstein by virtue of leading questions put to two
illiterate witnesses (one of whom could not identify his
"Marcus conceded they were illiterate.
" Respondent's Brief does not appear to continue to urge this position
' The Board. on remand to it. also could have ruled that, as a matter of law,
employer) who were prepared by him a few days before. The
testimony, as I perceive it, was merely a repetition of rote
answers which were the result of leading questions. In any
event, however, the testimony can be given no weight
because, hypothetically, it is wholly unreliable. The testimo-
ny related to the hypothetical and speculative effect of
previously unknown union constitutional provisions on the
minds of these voters relating to their actions 3 years before.
The Board rule, consistently approved by the Courts, is to
reject post hoc hypothetical testimony regarding the wit-
nesses' state of mind in the past. In N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 608 (1969), the Supreme
Court, for instance, observing that employees are more likely
than not, many months after a union membership card drive
and in response to questions by company counsel, to give
testimony damaging to the union, stated: "We therefore
reject any rule that requires a probe of an employee's
subjective motivations as involving an endless and unreliable
inquiry." See, Local 153, International Ladies' Garment
Workers Union, AFL-CIO [Marie Phillips. Inc.] v. N. L R. B.,
443 F.2d 667, 668 (D.C. Cir. 1970); N.L.R.B. v. Hunter
Outdoor Products, Inc. 440 F.2d 876 (lst Cir. 1971); Capitol
Foods, Inc. d/b/a Schulte's IGA Foodliner, 241 NLRB No.
142 (1979). And the rule is also applied to the subjective
estimation of threats made on the picket line in order to
determine whether threats were so egregious as to justify a
refusal to reinstate. N.L.R.B. v. W.C. McQuaide, Inc.. 552
F.2d 519 (3d Cir. 1977). Cf. El Rancho Market. 235 NLRB
468 (1978). 1 apply an analogous rule, here, to the issue of
what impact the provisions would have had on employees
had they known of them 3 years before. I conclude that such
hypothetical testimony relating to a remote event is wholly
unreliable.
To the extent that Marcus testified that his opinion was
that the impact of the omitted provisions would have been
great, I conclude that the foundation evidence failed to
convince me of his expert status. As will be discussed infra.
however, a finding on this point is not dispositive.
B. It being clear that Respondent has submitted no legally
probative factual basis showing a substantial impact on the
employees by virtue of the constitutional omissions, he next
argued at the hearing that, regardless of the facts, the
constitutional omissions were so substantial as to require the
conclusion, as a matter of law, that the misrepresentation
caused thereby might "reasonably be expected to have a
significant impact on the election" Hollywood Ceramics.
supra at 224), with the result that the election must be set
aside. While I conclude that, under the disposition I make in
this case, a ruling, as a matter of law, is immaterial, I would
nevertheless refrain from such a ruling.
The face of the court's opinion herein (598 F.2d 942)
shows that it was fully aware of the nature of the major
omissions in the fragmented version. Had the court desired
to rule, as a matter of law, that such a defective document,
whose omitted terms it recited without particular inquiry
into its actual effects on employees, required the setting aside
of the election, it" could have done so. S. H. Kress &
the constitutional omisions required the etting aside of the election without
further factual inquiry It nevertheless. remanded the matter for an "evidenlti-
(Contiued)
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company v. N.L.R.B.. 430 F.2d 1234 (5th Cir. 1970). Cf.
N.L.R.B. v. Gulf States Canners, Inc.. 585 F.2d 757 (5th Cir.
1978). Instead, perhaps mindful of its requirement, cited in
N.L.R.B. v. S. H. Kress (430 F.2d 1239), that the "heavy
burden" of selling aside a Board election requires specific
evidence that the unlawful acts "interfered with the employ-
ees' exercise of free choice to such an extent that they
materially affected the results of the election" (N.L.R.B. v.
Golden Age Beverage. 415 F.2d 26 (5th Cir. 1969)), the court
remanded this matter for a factual inquiry. The court and
Board both having apparently required the showing of a
factual basis of adverse impact on employees before ruling
that the Union's expurgated version was a misrepresentation
that substantially interfered with employee free choice, I will
not rule on the issue as a matter of law.'
Furthermore, some of the difficulties in ruling, as a matter
of law, on the effect of the omissions are clear. While the
omissions, under Hollywood Ceranics, supra at 224, may
well constitute a "substantial" misrepresentation, the ulti-
mate inquiry is factual: whether they had a "real impact on
the election." It would appear that the omissions, to have an
impact, must relate to issues reasonably before the voters. In
that case, one must decide, fior instance, whether such
omissions could reasonably be considered material to the
issues before the voting unit employees. The unit employees,
after all, were not voting for or against union membership,
but rather for or against selection of the Union as bargaining
agent. The omissions (strikes, election of union officers,
fines, penalties, etc.) in the expurgated copy of the constitu-
tion, as far as the employees were concerned, were directly
material to the question of the desirability of union member-
ship and not directly relevant to the distinct question of
selection of the Union as bargaining agent." It is this latter
matter, not the former, that was before the voter and as the
Board has recently noted, union membership and union
representation are "quite a different matter." San Diego
County District Coucil of 'Carpenters. United Brotherhood of
Carpenters and Joiners of Anerica. AFL-CIO (Campbell
Industries), 243 NLRB No. 17 (1979).
Thus, while it is certainly arguable that employees, put in
possession of the terms revealed in the full constitution,
might have rejected the Union as bargaining representative
in 1976 because of their discovery of the onerous obligations
the Union imposed on its members (without reference to
whether such employees themselves desired membership),
such a conclusion, in the absence of proof, does not
necessarily create a real impact. For, if these employees were
also made aware that they could retain their employment,
have the "benefit" of union representation, and not be made
ary hearing" (koard Exh. I(at) pursuant the court's sinilar direction.
Responldent (r.. p. I) asserts that the Administratise Law Judge "was
directed Itl conduct a full hearing on the facts."
" As will he sen ifr. I assume. argue.do. that the omiissioll.; as a matter ofr
la. were a substantial misrepreseltation.l
Thus, employees who renounce their uliiOl nlemhcrship do not
Ilcessarily evince a desire to he rid of the Unioll for colleclise-bargailllig
purporses, since they may have decided to he "free riders,." accepting the
heinefits of union representatioll without paying dues. R,dl-Eatier, .4itbu-
lance ..rvice. c.. e:t al.. 230 NIRB 542. 552 (1972). ven here a majority
of the bargaininlg unit dores ill hold unio l Iernllihrship that doers inot mlleanl
that the Union does not have their support. N.L.R.. v. I'ga.% li Icl. d/h/a
Pioneer (tluh 546 F.2d 82 (h Cir. 1977). 11t view f Respondeni's wiltness
(Willie Stewart's) tesllllOny ilhat he one thing hlie imldersiood, from Rplln-
subject to any fines or other union obligations,' then the
actual effect - in measuring the scope of the Hollywood
Ceramics phrase "real impact on the election" - of these
omissions, which relate solely to obligations of union
membership, on their selection of the Unionl as bargaining
representative might become mninimal rather than substan-
ial.
On the other hand, there undoubtedly could remain a
class of employees who, upon learning of the theretofore
unknown constitutional obligations, would reject the Union
as bargaining representative regardless of any obligation to
join the Union or submit to any union obligation. Not only
has such a class not been shown o exist. but it seems to me
that the setting aside of an election, as this court of appeals
has observed, should be bottomed on "specific evidence"
(N.L.R.B. v. Golden Age Beverage Co.. supra) that the
omissions interfered with free choice, rather than o the
creation of a theoretical employee class upon whose free
choice the omissions might have impinged.
As above noted, however, I reject Respondent's request
that I rule oil the effect of the omissions, as a matter of law,
as outside the scope of the remand and respectfully refer
same to the Board and the court of appeals.
C. In any event, I need not rely on either of the above
grounds in reaching the conclusion that the objection to the
election herein be rejected. Rather, it may be assumed,
arguendo. that the Union's furnishing of the fragmentary
constitution was a material misrepresentation which would
effect free choice and the results of the election. I neverthe-
less conclude that the objection should be rejected because
Respondent had an adequate opportunity to reply and to
correct the misrepresentation. Cf. N.L.R.B. v. Mr. Fine. Inc.
516 F.2d 60 (5th Cir. 1975).
The Hollywood Ceranics rule (140 NLRB at 244) is that
an election "should be set aside only where there has been a
misrepresentation . . . at a time which prevents the other
party or parties from making an effective reply, so that the
misrepresentation, whether deliberate or not, may reason-
ably be expected to have a significant impact on the
election." A misrepresentation which is followed by a time
period in which the other party does not have sufficient time
to reply requires the settilng aside of the election
(Amsterdam Printing & Litho Corp.. 214 NLRB 984 (1974)).
Equally, however, the objection to an election has been
overruled where there has been 4 days in which the opposing
party could have rebutted the particular misrepresentation
(Illinois Central Hospital. 224 NLRB 632, 638 (1976), and
cases cited therein); but distribution of a union leaflet 2 days
before a election has been held to constitute an insufficient
dent', a lorney's pretrial preparationl ivolving the effect of the oniissilons was
that "the Unilonl title you a whole lot ir difierenl things. I uliderstlod that." it
should he lotled that the Board rule is that nermhrship resignmltionls t avoid
uillI lilnel fin crossing a loill picke line "''nay Illt he equated to a
rellUllnciaio of a liolll'S repree'lllative capacity or status." Mar-Len
('ahbicl.s I/nc.. 24. N.RIl No. 4 (11)7).
"' In Florida. a "''rightl-o-work'" state, even the potential hbligation to pay
dues and fees to the tllion. ol herwise permitllted under Sec. 8(a)3). may not
he imnpod by colitract. I' lie ilsalnt omission is a; sullbtanial nlisrepretlla-
lioll, as a mailtter sof law. then mnil espondelll i usillg all uexpurgalted
collslutionl. as a nltr fr laI, adise enlplycs thal Ihe aIre InIt obliged to
becslIC Ulic u ll lhe r. hut IleertIlCh IeI nla) choit .Ilie tllilll; Is their
collecise-halrgainig represeltal is e'
1402
FLAGLER MEMORIAL PARK
time for the employer to reply ( N.L.R.B. v. Mr. Fine, Inc..
516 F.2d 60. There, the employer did not become aware of
the Union's leaflet until I day before the election, and had no
time to ascertain the correctness of union's assertions before
the election.
Under these principles, a review of the testimony of
Averill Marcus is necessary.
Marcus testified that the first time he looked at the
fragmented constitution which Paredes. the union agent. had
given him on June 21 was "possibly the flllowing week to 10
days later," i.e., June 28 to July I, 1976. Marcus, an attorney
with years of experience in labor relations (and labor law),
was called by Respondent, inter alia. as a labor law expert.
With regard to the expurgated version of the constitution.,
Marcus testified that, when he read it, he did not sit down
and read it page-by-page. Rather, he said he looked for:
. .certain things that your experience indicates to you
will be of interest to the employees, whereas other
things are strictly matters which would not involve
them whatsoever and in which they would not be
interested. [so], upon looking through it, I did not find
anything in the constitution that he had given me, as I
recall, concerning matters of union penalties, sources of
income, voting procedures, meetings, strikes, things of
that nature.
Marcus specifically testified not only that he was looking
for these very provisions, but could not find them in the
fragmented version. Marcus thereafter testified that these
omissions did not excite his attention sufficiently to have
him telephone Paredes and tell him that he found the
document was patently defective because "it did not really
register to me that there were parts missing." He added: "I
thought possibly they [the missing parts] had not been
covered in the constitution."' He also testified that he did
not realize the necessary existence of the omissions because
he was "not paying careful attention to the numbering of the
pages." Thus, he did not attempt to contact the Union either
in Florida or in its headquarters in Brooklyn, New York.
Nor did he speak about the matter to union agents or union
attorneys notwithstanding that he met them before the July
28 election. Lastly, Marcus testified that he discovered its
incompleteness only when he received the copy of the
constitution (Union Exh. I) from the Department of Labor
in Washington on July 27. Marcus also testified that in the
past. in his professional capacity, he has reviewed 10 to 20
different union constitutions.
Marcus further testified that, in the period between June
21 (when he received the expurgated version) and July 27
(the day before the election), in one or two meetings with
employees, he and a management representative discussed
portions of the expurgated constitution with them. He said
that he discussed the terms in the expurgated constitution on
two or three occasions between a time shortly after June 21
and ending within a week of the July 27 receipt of the full
constitution at two or three different places with the
employees, and that he had to interpret the provisions of the
constitution to the employees because, as above noted, the
employees were "not very literate." In one of these two or
three employee meetings in which a management rcpresenla-
tive, in Marcus' presence. talked to the employees about the
constitution, Marcus had the fragmented constitution with
him, read from it, and discussed several parts of it with
them. The meeting at which he had the fragmented
constitution with him and in which he talked to the
employees about it "may have been within a week" bIfore
the July 27 receipt of the unexpurgated version from
Washington.
In sum, Marcus testified not only that before going to the
meeting where he had the expurgated constitution with him
he reviewed it. but he also testified that (a) he had read it
hurriedly for the elements he was hxking for when he
received the fragmented constitution; (b) he reviewed it
again sometime before he went to the meeting, within a week
of the election, at which he discussed and interpreted the
fragmented constitution's terms to the employees; and (c) he
read from sections of the fragmented version to the employ-
ees at the meeting.
Discussion and Conclusions
I regard Marcus' testimony that he believed, from his
reading of the fragmented version as early as a week to 10
days after he received it, i.e., as early as the beginning of July
1976, that the omissions in the fragmented version (includ-
ing penalties for violating the constitution, membership
meetings, strikes, sources of union income, and employee
voting (tr. 33)) demonstrated merely subjects not dealt with,
rather than expurgation, as entirely incredible. As a profes-
sional with 12 years experience i labor relations and labor
law, held out by Respondent as a labor law expert. Marcus
testimony that he believed, after he read and rearead that
incomplete, disjointed document before the election, that
subjects such as voting rights, penalties, election of officers,
and union meetings were omitted by design is simply
incredible. Thus, I conclude, directly contrary to his
testimony, that, as early as the beginning of July, Marcus
knew that he was dealing with a fragmented version.
Whether he realized, in early July, what the legal conse-
quences (i.e., advantages) of the omissions were is another
matter. If Marcus believed, commencing in early July, that
his ability to fully communicate with the unit employees was
substantially hampered by the omissions in the fragmented
version, he was under an obligation to communicate this fact
to the Union. He did not.
The expurgated version is defective in two respects: (I) on
its face it manifests its defective state: pages are missing.
page numbers are discontinuous, and the subject matter and
sense of sentences on consecutive pages and paragraphs are
not consistent: and (2) Marcus, within 10 days of June 21,
1976, noticed the absence of a large number of matters
ordinarily found in union constitutions.
While it is supremely difficult to conclude that an
intelligent and interested reader might believe, from a casual
first reading of the fragmented version. faced with missing
pages, missing page numbers. and unresolved sentences and
paragraphs, that a number of additional items of great
importance might have been intentlionally and uniquely
I do not regard I his lesimliony as cllsMeletl. I do inol trcrdl it
14(031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
omitted by the Union in this particular constitution, I am
unable to believe, and I do not believe, that Marcus, who
valued union constitutions as weapons against organization,
perceived these omissions to be the result of purposeful
union action, i.e., the Union did not wish to include in its
constitution the subjects of union meetings, election of
officers, penalties, union income, etc. The face of the record,
the document, and my observation of Mr. Marcus eliminate
the possibility that he believed the omissions were intention-
al.
Since I am unable to accept, and do not accept, Marcus'
above testimony, I similarly do not accept his testimony that
he first became aware of the omissions in the expurgated
version on July 27 when he received the full copy from the
Department of Labor. For there is no dispute that, about a
week before he received the full copy, he not only reviewed
the expurgated version in order to prepare for subsequent
employee meetings relating to the terms of the constitution,
but he and another management representative thereafter
explained the constitution to employees in company spon-
sored meetings.
I conclude, on the basis of Marcus' admitting that he read
the expurgated version no later than the beginning of July
1976, his general 12-year background as a labor relations
and on the basis of labor law practioner. And as a
professional desirous of using the document to support
Respondent's interest in meeting the Union's organizing
drive, that he not only knew the omissions were not
intentional, but that he knew of this condition no later than
on or about July 1, 1976, i.e., almost 4 weeks before the
election."
I further conclude both that he knew that the omissions
were material and that he had sufficient time (approximately
27 days) before the election to demand from the Union the
full constitution or to request a postponement of the
election. Having done neither, Marcus, and the Respondent,
I conclude, had sufficient opportunity to either correct the
misrepresentation or to escape its consequences in the
election. Hollywood Ceramics Co., 140 NLRB at 224; cf.
N.L.R.B. v. Mr. Fine, Inc., 516 F.2d 60; Illinois Central
Community Hospital, 224 NLRB 632, 638. It should be
noted, moreover, that there is no evidence concerning the
" If he knew this on or about July 1. there can be no doubt that after
reading. rereading, and explaining it to unit employees, his knowledge thereof
was confirmed well before the July 2H election.
'' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
uses, if any, to which the Union put the fragmented
constitution.
Since Respondent had an adequate opportunity to correct
or escape from the misrepresentation, the rule of Hollywood
Ceramics, supra. requires that I recommend to the Board
that the Respondent's Objection , be rejected.
Upon the foregoing finding of fact made upon the
evidence received in the supplemental hearing herein, and
for the reasons stated by me in connection with these
findings, I make the following:
CONCI.USIONS OF LAW
1. Respondent has failed to prove that the Union has
merged, is no longer in existence, or is a mere alter ego of
another labor organization.
2. Respondent has failed to prove that the omissions in the
fragmentary constitution constituted a misrepresentation
which, even if substantial, was likely to have had a real
impact on the election.
3. Assuming, arguendo, that the Union's furnishing of a
fragmentary copy of its constitution created a misrepresenta-
tion which would require that the election be set aside,
Respondent knew of the omissions constituting such misre-
presentation at such time as to have had adequate opportuni-
ty to correct the misrepresentation or to escape from its
consequences.
ORDER
Upon the foregoing findings of fact and supplemental
conclusions of law,'" I recommend to the Board that it
overrule the objection to the election and adhere to its
certification of the Union ( Robert's Tours, Inc., 244 NLRB
No. 133 (1979), and its findings, conclusions, and Order
heretofore issued in Flagler Memorial Park, el al.. 232
NLRB 660, but that it extend the certification year to the
date Respondent commences bargaining with the Union.
Mar-jac Poultry Inc., 136 NLRB 785 (1962); Commerce
Company d/b/a Lamar Hotel. 140 NLRB 226, 229 (1962),
enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S.
817.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order. ailnd all objections thereto shall be deemed
waived for all purposes.
1404