Formco, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1977

233 N.L.R.B. 61 (N.L.R.B. 1977)

FORMCO, INC.
Formco, Inc. and International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America, UAW, Petitioner. Case 9-
RC-1 1825
October 19, 1977
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on April 29, 1977,' and the Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
Employer's exceptions and hereby adopts the Re-
gional Director's findings and recommendations only
to the extent consistent herewith.
The Regional Director in his report of July 15,
1977, found no merit in the Employer's objections to
conduct affecting the results of the election and
recommended that they be overruled and that the
Petitioner be certified. The Employer filed timely
exceptions to the Regional Director's report. Because
we find merit in the Employer's Objection 1, we shall
set the election aside and order that a new one be
conducted.
The Employer's Objection I alleges that the
"employees were unduly influenced to cause the
results of the representation election." In support of
this objection, the Employer submitted a letter
Petitioner distributed to all employees which was
signed by Ivory Howard, one of the Petitioner's
business representatives. That letter, dated March II,
1977, stated in part:
As you know by now, Management was found
guilty of engaging in unfair labor practices and
was ordered to post a 60-Day Notice.
The Regional Director's investigation disclosed
that on March 4, 1977, the Acting Regional Director
for Region 9 had issued a complaint and notice of
hearing in Case 9-CA-10981 alleging that the
] The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional Director on January 6.
1977 (the Regional Director inadvertently misstated this date in his report).
The tally was 53 for, and 25 against, the Petitioner: there were 10 challenged
ballots, an insufficient number to affect the results.
2 we are administratively advised that the parties executed the
settlement agreement on February 7, 1977.
3 The Regional Director additionally concluded that the objection was
merely conclusionary and lacked the specificity required by Board rules. He
nonetheless proceeded to investigate the objection and found it substantive-
ly lacking in merit. Under these circumstances, and because the Employer
233 NLRB No. 5
Employer violated Section 8(a)(l) of the Act. On
March 17, 1977, 6 days after the Petitioner's letter,
the Regional Director approved a settlement agree-
ment between the parties.2 The settlement agreement
contained a nonadmission clause.
The Regional Director found that although the
Petitioner's letter was inaccurate insofar as it asserted
that a finding had been made in the unfair labor
practice case and that an order had issued requiring
the posting of a notice, it did not rise to the type of
deceptive campaign practices involving the Board
and its processes which would warrant setting the
election aside under the principles set forth in
Shopping Kart Food Market, Inc., 228 NLRB 1311
(1977). He therefore concluded that the Employer's
Objection I is without merit and recommended that
it be overruled. 3
The Regional Director has apparently miscon-
strued Shopping Kart Food Market, Inc., as overruling
previous cases 4 in which we held that any substantial
mischaracterization or misuse of a Board document
for partisan election purposes is a serious misrepre-
sentation warranting setting an election aside. Shop-
ping Kart did not change Board law with regard to
improper use of the Board and its processes for
election campaign purposes. As enunciated in the
Shopping Kart decision: 5
[W]e decide today that we will no longer set
elections aside on the basis of misleading cam-
paign statements. However, Board intervention
will continue to occur in instances where a party
has engaged in such deceptive campaign practices
as improperly involving the Board and its
processes, or the use of forged documents which
render the voters unable to recognize the propa-
ganda for what it is. While the former standard
represents no change in Board law, [Emphasis
supplied] by our adoption of the latter we choose
to revert to our earlier policy of setting an election
aside not on the basis of the substance of the
representation, but the deceptive manner in which
it was made.
It is that unchanged law, rather than Shopping Kart,
which is controlling here.
The Petitioner herein has stated that the Employer
"was found guilty of engaging in unfair labor
submitted specific evidence in support of its objection, we do not find the
Regional Director's conclusion that the objection should be overruled for
failure to comport with Board rules an adequate basis for overruling the
objection.
4 The Regional Director cited Jobbers Warehouse Service, Inc.. 210
NLRB 1038(1974).
5 Member Murphy separately concurred in the view expressed by the
majority with regard to this issue. Chairman Fanning and Member Jenkins,
while dissenting in the Shopping Karl decision, expressed no disagreement
with the majority position that Board intervention would continue to occur
in instances where a party improperly involved the Board and its processes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices." Only the Board can make such a finding.
Here, no such finding had been made. Indeed, the
merits of the unfair labor practice allegations were
not litigated, as the parties on February 7, 1977,
entered into a settlement agreement. That agreement,
as stated, contained a nonadmission clause. There-
fore, the Petitioner's statement that the Employer
was found guilty of unfair labor practices is clearly a
misstatement of what actually occurred.
This Board has been consistent in jealously
guarding against any intrusion or abuse of its
processes for partisan election purposes. We have
found not only physical alteration of Board docu-
ments,6 but also substantial mischaracterization or
misuse of such documents,7 to have the potential of
placing the Board's neutrality in question during the
critical preelection campaign period. A mischaracter-
ization of the legal effects of a settlement agreement
similar to that present herein existed in Dubie-Clark
Co., Inc., supra. In that case a leaflet stating that "the
National Labor Relations Board has found that
Dubie-Clark has violated your rights under the law"
was distributed by the union 3 days prior to an
election when, in fact, an informal settlement
agreement containing a nonadmission clause had
been entered into by the parties. In setting the
election aside, we expressed concern both that the
mischaracterization might place the Board's neutrali-
ty in question, and that allowing the misrepresenta-
tion of settlement agreements for partisan election
purposes might discourage parties from voluntarily
entering into such settlements. We deem that case
dispositive as to the objectionable nature of Petition-
er's statement.
It could perhaps be argued that the Employer had
ample time to respond. Petitioner's misstatement
here occurred on March 11, 1977, and the election
was held some 7 weeks later, on April 29, 1977.
However, we find the fact that there may have been
time to respond is not a valid consideration with
6 Allied Electric Products, Inc., 109 NLRB 1270(1954); Mallory Capacitor
Company, a Division of P. R. Mallory & Co., Inc., 161 NLRB 1510 (1966);
Rebmar, Inc., 173 NLRB 1434 (1968); Thiokol Chemical Corporation, Hall-
Way Plant, 202 NLRB 434 (1973); J. Ray McDermott & Co., Inc., 215 NLRB
570 (1974).
respect to the conduct here involved. The Petitioner's
misstatements were reasonably calculated to mislead
employees into believing that the Board had judged
the Employer to have committed unfair labor
practices whereas, in truth, such practices were never
proven. The impact of the Petitioner's message upon
the freedom of choice of the voter is not amenable to
credible or effective response by the Employer.
Employees may well view any response by the
Employer as an attempt to extricate itself from the
damaging effects of an adverse finding by the Board
by seeking to mislead them. As we stated in Thiokol
Chemical Corporation, supra, a case in which an
employer had reprinted an outdated Board docu-
ment, "A Layman's Guide to Basic Law Under the
National Labor Relations Act" (1962 edition), to
misstate the presently existing law as to the rights of
economic strikers:
We think the [dissenter's I reliance on the Union's
"opportunity to correct" the misrepresentation is
misplaced. It is questionable whether any partisan
in a campaign can credibly and effectively correct
a misstatement, buttressed by official documents,
about the legal principles applied by the public
agency administering the statute. In any event, we
deem it more salutary not to attempt any such
evaluation.
Our concern is with the protection of the integrity
of our own processes, lest any voter be left with the
impression that this Board is biased in favor of any
party in an election. We are unwilling to condone
any campaign statement which even implies such
bias. Accordingly, Objection I is hereby sustained,
and we shall set the election aside and direct that a
new one be conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
7 Dubie-Clark Co., Incorporated, 209 NLRB 217 (1974); Natter Manufac-
turing Corporation, 210 NLRB 118 (1974); Jobbers Warehouse Service, Inc.,
supra.
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