Howard Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 638 (N.L.R.B. 1975)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Manufacturing Company , Inc. and Southern
Missouri-Arkansas District Council, International
Ladies' Garment Workers' Union, AFLr-CIO, Peti-
tioner. Case 26-RC-4918
July 28, 1975
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On March 25, 1975, the Acting Regional Director
for Region 26 issued a Supplemental Decision and
Order in the above-entitled proceeding in which he
sustained Petitioner's Objections 4 and 11 to conduct
affecting the results of the election , and directed that
a second election be conducted.' Thereafter, pur-
suant to the National Labor Relations Board Rules
and Regulations, Series 8, as amended , the Employer
filed a request for review of the Acting Regional
Director's Supplemental Decision on the grounds, in-
ter alia, that he departed from officially reported
Board precedent. The Petitioner filed an opposition
to the request for review.
By telegraphic order dated May 15, 1975, the Na-
tional Labor Relations Board granted the request for
review and stayed the election pending decision on
review.2 Thereafter, the Employer filed a brief on re-
view.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review , includ-
ing the Employer's brief on review, and makes the
following findings:
In sustaining Petitioner's Objection 4, the Acting
Regional Director found that in a speech to its em-
ployees on the day before the election the Employer
erroneously informed the employees that the union
cards utilized by the Union during the campaign
were membership cards and that those employees
who signed would automatically become members in
the event of a union victory.
He further found such misrepresentation was sub-
stantial, as the Employer referred to the Union's
i The tally of ballots for the election showed that of approximately 139
eligible voters 108 cast valid ballots, of which 47 were for , and 61 against,
the Petitioner . There were 28 challenged ballots and no void ballots The
Acting Regional Director sustained 23 challenges , overruled 2, and made no
determination with respect to the remaining 3 challenges as they were not
determinative.
2 The Petitioner also filed a request for review which was denied by tele-
graphic order dated May 15, 1975
constitution to point out the requirements of union
membership, including dues, as well as the possibility
of being subject to fines and assessments , and con-
cluded that the Union had insufficient opportunity
to respond.
However, we find, in accord with the Employer's
contentions , that the employees could evaluate the
erroneous interpretation given the cards by the Em-
ployer. Thus, the cards on their face did not purport
to be membership cards but merely "authorize[d]"
the Union to represent the signatory. Employees who
signed such cards are presumed to have read them
and had an independent basis for evaluating the ac-
curacy of the Employer's representations. Moreover,
the legal effect of the card was not a matter about
which the employees could assume was in the pecu-
liar knowledge of the Employer.3 Accordingly, Ob-
jection 4 is overruled.
Objection I 1 involves a handbill distributed by the
Employer about 3 hours before the election, stating,
inter alia, "The Labor Board contacted the Union
and required the Union to withdraw the charges that
would have stopped the election." (Emphasis in the
original .) The Acting Regional Director concluded
(1) that such statement was a misrepresentation in
fact as the Union was not "required" to withdraw the
charge but was only put on notice by the Regional
Office that the 8(a)(5) allegation in the charges was a
"blocking charge" which might result in cancellation
of the election, and thereafter the Union elected to
delete the 8(a)(5) allegation,4 and (2) that such mis-
representation was objectionable as an effort by the
Employer to place the Board's neutrality in question.
We disagree.
While it is not entirely accurate to say that the
Union was "required" to withdraw the charges, we
are of the opinion that such choice of words in these
circumstances had no impact on the election. More-
over, contrary to the Acting Regional Director, we
do not find that the Employer's characterization of
the withdrawal of the charges by the Union here is
analogous to a misrepresentation or mischaracteriza-
tion of Board documents which the Board has found
objectionable.' Nor do we find such conduct placed
3 The Jeffrey Manufacturing Company, Morristown Division , 180 NLRB
701, 702 (1970); Hollywood Ceramics Company, Inc, 140 N LRB 221, 224, fn.
10 (1962).
Member Penello agrees with his colleague that the alleged misrepresenta-
tion does not warrant setting aside the election, but so finds for the reasons
set forth in his dissenting opinions in Ereno Lewis, 217 NLRB No 45 (1975),
and Medical Ancillary Services, Inc., 212 NLRB 582 (1974).
4 Employers attorney , who was in contact with the Regional Office, was
aware of the "blocking charge" and states he was told that if , upon notice
from the Region , the Union would amend out the reference to an 8(a)(5)
allegation the election could proceed as scheduled He was later advised of
the filing of the second amended charge
5 See. e .g. Dubte-Clark Co., Incorporated, 209 NLRB 217 (1974); Rebmar,
Inc, 173 NLRB 1434 (1968).
Member Penello agrees with his colleague in the majority that the
219 NLRB No. 138
HOWARD MANUFACTURING COMPANY, INC.
the Board's neutrality into question .6 Objection I I is
therefore overruled.
Accordingly, as both objections have been over-
ruled and the, tally of ballots shows that a majority of
the valid balks have not been cast in favor of the
Petitioner, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Southern Missouri-Ar-
kansas District Council, International Ladies' Gar-
ment Workers' Union, AFL-CIO, and that said la-
bor organization is not the exclusive representative of
all the employees, in the unit herein involved, within
the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
Employer's characterization of the withdrawal of the charges herein is not
analogous to a misrepresentation or mischaracterization of Board docu-
ments . However , in reaching this result, he does not rely on the Board's
decision in Dubie-Clark Co., Incorporated, in which he dissented.
6 Cf. J. Ray McDermott & Co., Inc., 215 NLRB No. 104 (1974).
639
MEMBER FANNING, dissenting:
I would affirm the Acting Regional Director's sus-
taining of Objection 11. I believe that the Employer's
misstatement , distributed via a handbill only 3 hours
before the election, was misleading and inaccurate.
The Employer, by stating that the Board had "re-
quired" the Petitioner to withdraw its charges, seri-
ously mischaracterized the actions of both the Board
and Petitioner. Petitioner had the right to file its
charges. The Board informed Petitioner that its
8(a)(5) charge was a "blocking charge" which might
necessitate postponing the election. Thereupon, Peti-
tioner elected to amend its charge and delete the
8(a)(5) allegation. By inaccurately stating that the
Board "required" withdrawal of the charges, the Em-
ployer made a last-minute effort to gain a partisan
advantage which might place the Board's neutrality
in question. On the basis of Dubie-Clark Co., Inc.,
209 NLRB 217 (1974), I would affirm the Acting Re-
gional Director's sustaining of Objection II and set
aside the election.