Huntsville Mfg., Co.

National Labor Relations Board - Board Decisions

Mar 6, 1979

240 N.L.R.B. 1220 (N.L.R.B. 1979)

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huntsville Manufacturing Company, a Division of M.
Lowenstein & Sons, Inc and International Chemical
Workers Union, AFL-CIO, Petitioner. Case 10-
RC-1 1487
March 6, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Pursuant to the terms of a Stipulation for Certifi-
cation Upon Consent Election approved by secret
ballot was conducted on September 14, 1978, under
the Regional Director's direction and supervision
among employees in the stipulated unit. At the con-
clusion of the election, the parties were furnished
with a tally of ballots which showed that there were
approximately 1,532 voters, with 1.304 ballots cast,
of which 731 were for and 528 against the Petitioner.
There were 4 void ballots and 45 challenged ballots
cast. The challenged ballots were not sufficient to
affect the results of the election. Thereafter, the Em-
ployer filed timely objections to conduct affecting
the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8. as
amended, the Regional Director conducted an inves-
tigation and, on October 19, 1978, issued and duly
served on the parties his report and recommenda-
tions on the objections. In his report, the Regional
Director recommended that the objections be over-
ruled in their entirety and that the Board issue a Cer-
tification of Representative. Thereafter, the Em-
ployer filed timely exceptions and a supporting brief
to the Regional Director's report.
Upon the entire record in this case, the Board
finds:
I. 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 labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production
and maintenance employees employed by the
240 NLRB No. 172
Employer at its facility in Huntsville, Alabama,
including all plant clerical employees, but ex-
cluding all office clerical employees, profession-
al employees, managerial employees, laboratory
employees, guards, and supervisors as defined in
the Act.
5. The Board has considered the entire record in
this proceeding, including the Employer's objections,
the Regional Director's report, the Employer's excep-
tions and brief, and hereby adopts the Regional Di-
rector's recommendation to overrule the objections
in their entirety and to issue a Certification of Repre-
sentative. We do not, however, adopt the reasoning
by which the Regional Director reached this conclu-
sion.
The Employer's objections concern the possible
impact of three documents, circulated by Petitioner
during the course of the election campaign,' upon the
members of the voting unit herein.
The document designated Appendix A [omitted
from publication] 2 in the Regional Director's report
and attached hereto is a two-sided leaflet depicting a
"minuteman" on one side, and "Uncle Sam" and an
oversize reproduction of the "collective bargaining"
commemorative postage stamp on the other. The
wording, appearing in large bold type, reads as fol-
lows: "Your right to join the union is protected by
the U.S. Government." "How you can help," "This is
what ou should do," "Stand Up For Your Rights."
"Remember-Uncle Sam Stands Behind You," and
"IT'S YOUR RIGHT TO HAVE A UNION." There
is a good deal of small print on both sides of the
leaflet paraphrasing employee rights under the Act.3
The exhibit attached to the Regional Director's re-
port is apparently a copy of the original leaflet; the
report itself makes no reference to the document's
color except as is set out in the Employer's statement
of its objection: "The handbill further fosters this ap-
pearance of government source by headline in red
announcing, 'Your right to join the union is protect-
ed by the U.S. Government.'" There is nothing on
Because the Regional Director's report relied on Shopping Kart Food
,arkei. In . 228 NlRB 1311 (1977). there are no specific factual findings
relative to who circulated the documents, the manner of thier circulation. or
when the circulation took place relative to the election The Employer. in
excepting to the Regional Director's report included affidavits taken by the
Board agent during her investigation of the objections. he Emplo)er's ex-
ceptions and supporting brief were served on Petitioner who submitted no
esidence or any statement of position in opposition. We therefore presume
that there is no factual dispute ils to the source of the documents. or as to
the time and manner of their circulation Moreover, even assuming the
lmployer's allegations in this regard to be an accurate representation of the
facts, we are nonetheless in agreement that Certification of Representative
should issue for the reasons set out infra
2 Pursuant to the acting Regional Director's "Erratum." dated October
26h 1978
We do not, at this pint. concern ourselves with the accuracy of the
pamphlet's phraselogy.
HUNTSVILLE MANUFACTURING COMPANY 1221
the leaflet to identify it with the Petitioner. The Em-
ployer alleges that this leaflet was circuited by the
Petitioner on or about August 28, 1978.
Appendix B [omitted from publication], 4 attached
hereto, is a leaflet which clearly identifies the Peti-
tioner as its source and states in relevant part:
UNITED STATES GOVERNMENT STATISTICS SHOW
I. That the overall workers of the HUNTSVILLE
MANUFACTURING COMPANY income is FAR BELOW
the average income of other workers that live in
the state of Alabama.
2. That the overall employees of the HUNTS-
VILLE MANUFACTURING COMPANY income is ALSO
FAR BELOW the average income of other workers
through-out the United States.
3. M. Lowenstein & Sons, Inc., Net Profits
for the first six months of 1978 were greater than
FIVE TIMES their profits for the whole year of
1977.
The document also displays a picture of "Uncle
Sam" and states in bold print, "Stand Up For Your
Rights," and "Remember-Uncle Sam Stands Be-
hind You." The Employer's statement of its objec-
tions indicates that this document was circulated by
Petitioner on September 11, 1978.
Appendix C [omitted from publication], 5 attached
hereto, is a document entitled "SOME DON'TS FOR SU-
PERVISORS" with the subheading, "Under the Labor-
Management Relations Act of 1947 and the Labor-
Management Reporting and Disclosure Act of
1959." The document lists 29 things which su-
pervisors may not do which might interfere with em-
ployees' Section 7 rights. The Employer's statement
of its objections makes no allegation regarding the
timing of the leaflet's circulation, but it does submit
the affidavits taken by the Board agent during the
investigation. The references therein to when particu-
lar employees saw Appendix C were, "a week or so"
prior to the election, "a week or 10 days" prior to the
election, and on "August 28."
Having examined the documents in question, the
following questions are raised for our consideration:
1. Did the leaflets designated Appendixes A and B
make material misrepresentations sufficient to direct
a second election pursuant to the Board's recent
holdings in General Knit of California, Inc., 239
NLRB 619 (1978) and Hollywood Ceramics Company,
Inc., 140 NLRB 221 (1962);6 and,
4See fn. 2, supra
5See fn. 2, supra.
6This aspect of our decision relates to Employer's Objections 2. 3, 5, and
6.
2. Did the leaflets designated Appendixes A, B,
and C come within the holding of Columbia Tanning
Corporation, 238 NLRB No. 125 (1978) by giving em-
ployees the impression that the United States Gov-
ernment and/or the Board favored unionization and,
thus, the Petitioner.7
For the reasons set forth below, we are of the opin-
ion that both questions must be answered in the neg-
ative.
The Alleged Material Misrepresentations
The basis of the Employer's allegation that Appen-
dix A constitutes a material misrepresentation within
the ambit of Holli,wood Ceramics Company, Inc., su-
pra, is its belief that this document "implies that the
Board exists to help Unions," and, further, that no-
where does the leaflet mention "violations of law or
election misconduct of Unions." Thus, the Em-
ployer argues that by presenting only a paraphrased
portion of the National Labor Relations Act, the
leaflet distorts the essential neutrality of the Board-
making it appear that one of the functions of this
Agency is to assist employees in the organization of
the workplace.
The document designated Appendix B presents us
with the more familiar allegation that Petitioner
herein has made substantial material misrepresenta-
tions concerning the wage rates of its employees as
compared with wage rates of other workers in the
State of Alabama and other States, and, further, a
misrepresentation concerning the Employer's profits
or lack thereof.
We begin by noting the relevant standard of re-
view set out in Hollywood Ceramics Company, Inc.,
supra at 224, and recently reiterated in General Knit
of California, Inc., supra.
. . .an election should be set aside only where
there has been a misrepresentation or other simi-
lar campaign trickery, which involves a substan-
tial 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
expected to have a significant impact on the
election.
General Knit further elucidated the concept of mate-
rial misrepresentation by specifically adopting the
language of the dissent in Shopping Kart Food Mar-
ket, Inc., 228 NLRB 1311, 1315, (1977), saying:
. . . employees should be afforded a degree of
protection from overzealous campaigners who
This aspect of our decision relates to Employer's objections I. 2, and 7.
z Emploser's Objection 1.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distort the issues by substantial misstatements of
relevant and material facts within the pecial
knowledge of the campaigner, so shortly before
the election that there is no effective time for
reply.
The document designated Appendix A. alleged to
misrepresent the Board's neutral position in the orga-
nizational arena, does not, in our view, rise to the
level of the kind of material misrepresentation that
would cause us to direct a new election. In the first
instance, we cannot say that this leaflet evidences a
"substantial departure from the truth," and, while it
may not present a total and complete picture of the
Act's thrust, its paraphrasing of selected portions
thereof does not depart so widely from the corre-
sponding portions of the Act and relevant case law
so as to cause us concern. The Board has previously
considered misstatements of the Act. See Oxford
Pickles. Division of John E. Cain Co., 190 NLRB 109
(1971). Thiokol Chemical C(orporation, Hall- Way
Plant, 202 NLRB 434 (1973), concerned an
employer's distribution of an outdated "Layman's
Guide" which the Board found to have been appro-
priated by the employer for its own use, and which
misstated the law concerning reemployment rights of
economic strikers. The Board's emphasis there was
not only on the inaccurate statement of the law, but
on the employer's use of official Board documents to
effect such misstatement. Subsequent to the Board's
holding in Shopping Kart. the Board again had the
opportunity to consider misstatements of the law.
Monmoulth Medical Center, 234 NLRB 328 (1978).
However, the Board did so in the context of whether
such misstatement involved the Board or its pro-
cesses and whether the misstatement compromised
the Board's neutrality. The employer in that case did
not specifically address itself to the Hollywood Ce-
ramics implications of the Petitioner's statements,
nor did the Board. Having since returned to the con-
sideration of material misrepresentation by way of
our holding in General Knit, we nonetheless con-
clude, for the reasons already stated supra. that Peti-
tioner's Appendix A is well within the bounds of per-
missible preeelction conduct.9
The leaflet designated Appendix B is alleged by
the Employer as a material misrepresentation con-
cerning comparisons of wages between the
Employer's employees and other employees in Ala-
bama and other States, as well as an alleged material
misrepresentation with regard to the Employer's
Moreover, the Emnploer here cannot claim that it was without effecti.e
time to reply Its own objections allege that Appendix A was circulated hi
Petitioner "[Oin . . . August 28, 1978 and thereafter." at least 18 dcaos prior
to the election.
profits. The Employer also claims Appendix B was
circulated on September 11, 1978, too late for the
Employer to have made effective reply. We do not
agree with the Employer's contentions.
The Petitioner's statement with respect to the
Employer's profits was:
M. Lowenstein & Sons. Inc.. Net Profits for
the first six months of 1978 were greater than
Ii l lils their profits for the whole year of
1977.
In support of its allegation the Employer states that,
"The true facts are that the Company had net losses
in 1977 in an amount exceeding $6,100,000....
While the Company operated profitably in the first
half of 1978, such profits were less than the losses
suffered in 1977," and, further, that there are no
available government statistics which could be the
basis for such misrepresentations.
Assuming the Employer's allegation to be true, the
Employer makes no reference as to whether its repre-
sentations as to profit and loss refer to Huntsville
Manufacturing Company or to M. Lowenstein &
Sons, Inc.: nor does the Employer enlighten us as to
a profit figure for the first half of 1978 with respect to
either Company. Thus, the Employer has provided
no evidence in support of its assertion that the state-
ment in question is, in fact, false. And. in applying
the standard of Htollwood Ceramics, the Board has
not directed a hearing " as a matter of course in any
case in which misrepresentations are alleged without
evidence that the claimed misrepresentations involve
substantial departures from the truth. Modine Manu-
facturing Company, 203 NLRB 527, 530 (1973). We
therefore find that the Employer has failed to make a
prima facie showing that this portion of Appendix B
is a material misrepresentation.
The two statements in Appendix B concerning the
earnings comparison causes us to engage in a similar
analysis. In this instance, the Employer specifically
supplied us with average earnings figures for Hunts-
ville Manufacturing Company employees'' but only
for the month of January 1978, a time frame not only
outside the critical period, but also fully 9 months
prior to the Petitioner's statement. Regardless of the
fact that the government statistics may have been
provided for an arguably relevant period, we have,
however, no data from the Employer with which we
can make an informed comparison.?2 Accordingly,
and for the same reasons set forth surpra, with re-
spect to the Petitioner's statements as to profits. we
find that the Employer has failed to make a prima
m Nor has the Board directed ia new election il such circunlstances.
W ich correspond to the appropriate aIllegations In Petitioner's leaflet.
1 A, the language of Petitiner's statement is not retrospective. we must
aissUlec hat it refers t Income it the time of the circulation of the leaflet.
HUNTSVILLE MANUFACTURING COMPANY 1223
facie case herein showing that the document con-
tained material misrepresentations as to employee in-
come or earnings. We therefore do not find a hearing
warranted, and we will not direct a new election with
respect to Appendix B.' 3
The Issue of Misuse of the Board's Process To
Secure a Partisan Advantage
The Employer contends that the three leaflets un-
der consideration misled employees by making it ap-
pear as though the Board and/or the United States
Government favored unionization.
Appendix B, while displaying a picture of "Uncle
Sam" and stating that "United States Government
Statistics Show," it equally displays a large represen-
tation of the Petitioner's logo. Appendix B, in our
opinion a clear example of campaign "propaganda,"
does not assume the character of a government docu-
ment merely because it displays a picture of "Uncle
Sam" and refers to government statistics. It goes
without saying that Appendix B does not purport to
resemble any document used by the Board. We
therefore conclude that Appendix B does not im-
properly involve the Board or its processes.'4 Also.
Appendix B does not fall within the unique parame-
ters of Columbia Tanning Corporation. supra. as hav-
ing improperly suggested government approval of the
Petitioner. Columbia Tannins arose in the context of
a letter written by the Commissioner of Labor of the
Commonwealth of Massachusetts on his official sta-
tionery. taking what could be interpreted as a parti-
san position favoring the union. More important,
however, was the employer's contention, acquiesced
in by the Board, that the letter, written in Greek and
sent to approximately one-fourth of the eligible vot-
ers who were apparently Greek immigrants with little
or no familarity with the structure of the United
States Government, "creat[ed] a very real possibility
that the employees could have easily confused the
Commissioner of Labor with the Board." The facts
presented herein in no way track the circumstances
of Columbia Tanning.
Although, in contrast to Appendix B. neither Ap-
pendix A nor Appendix C bears any reference to the
Petitioner, we likewise conclude that neither docu-
ment misleads employees by making it appear as
though the Board and/or the United States Govern-
ment favors unionization. 5 While both documents
I} As we have determined that the Emploser did notl present a prtma tetn A
case on the substantlse issues of materiall nmisrepresentlalln. we find it un-
neccessarv to cnsider he issue of adequalc f time it repl\
1 4 li d Eleitric Produt-rs, In,.. t10 NL RB 1270 i 9541.
1, Although he I mploer submitted se'eral affidasits in which Ihe affi-
ants asserted that theN bheieed the documents ii1 question to he gosernrient
documents including the expert opinion of a pr.ctlting indlulslrlil ps!chol-
contain references to the National Labor Relations
Act, neither document bears a resemblance to any
publication of this Agency. Like the document in
Milonmnouth Medical Center. 234 NLRB 328 (1978),
which unquestionably misstated the law concerning
remedies for unfair labor practices, and which we
found not objectionable under the holding in Allied
Electric Products, supra, we conclude that Appendix-
es A and C herein come within the boundaries of
allowable preeelction conduct.' 6
The Employer makes the further contention that
Columbia Tanning Corporation, supra, is controlling
with respect to Appendixes A and C. As noted
above, our holding in that case arose within the spe-
cial circumstances of non-English-speaking employ-
ees unfamiliar with the United States Government.
Moreover, we again point out that the gravamen of
the employer's argument there was that those non-
English-speaking employees could have easily con-
fused the commissioner of labor with the Board.
Thus, the thrust of our analysis has not, with Colum-
bia Tanning, departed from the concept of interfer-
ence with the Board's processes. We did not hold in
that case that a document which appears to be some-
how related to the United States Government and
which also contains an arguably partisan message,
thereby amounts to objectionable conduct. Our con-
cern is rather with how closely a document mimics a
Board publication an under what circumstances it
can be said that employees might be susceptible to
such mimicry. The factors which led to our decision
of such employee susceptibility in Columbia Tanning
are not present here. We thus conclude that neither
Appendix A nor Appendix C forms the basis for con-
duct that would cause us to direct a new election
herein.
Accordingly, and based on all of the above, we
overrule the Employer's objections in their entirety
and shall issue the following certification.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ogils the Board has never adhered to a suhlectile standard in determining
coinduct to the objectionabl e See litirtl Dcl l Prduwi' l) ii,.. n , li.tin
Induwrr-ili Pr-ldiluct Inc. 221 Nl.RB 7. 708 11975I'. where the \dminstra-
iie Las Judge stated, with the Board's appro.al. that
Inr an event. the Board nmakes tsits determination whether to set aside
an election on an objective hasis ... , on whether he alleged miscon-
ducl would reasonabl', tend o present the holding of a fair and free
election rather than n the subjective statements of the empleres ats
to whether he) were "coerced" or "misled" into voting as they did.
Pilron'l :uatlnetl Dct iie .4genc Ini. 124 NLRB 1076. 1977. fn. 3
1''9]: ( II R Findr: l)ition, te D)lli loit i talcabitl Iron (o rnan I
121 NlRB 1707. 17(N. aind cases there cited it fit 3 (1959): Orlean.
'tanu;iruri,, ngi ( rnpiranl 120) Nl RB 630. 31, fn 4 1958)
,([ ( i.4 ( 2 rrariln, 34 N RB 1209 (197)., where the document n
queshion blalt.ntl mimlcked a Board pubhlicatin
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots have been cast for International Chemical
Workers Union, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
MEMBER PENELLO. concurring:
Chairman Fanning and Member Truesdale are in
agreement that the misrepresentations alleged in Ob-
jections 2, 3, 5, and 6 ' do not warrant setting aside
the election for the reasons set forth in General Knit
of California, Inc., 239 NLRB 619 (1978), which re-
versed Shopping Karl Food Market, Inc., 228 NLRB
1311 (1977), relied upon by the Regional Director in
overruling these objections. I concur with my col-
leagues, but do so for the reasons set forth in Shop-
ping Karl Food Market, Inc., supra, the principles of
which I adhere to still.'8
I concur with my colleagues that Objections I,
2(sic), and 7 '9 should be overruled, but I do so based
7 Which relate to the documents designated Appendixes A and B.
to See my dissenting opinion in General Knit of California, Inc., supra
on my dissent in GAF Corporation, 234 NLRB 1209
(1978), which states that "The key to the Board's pre-
vious decisions in this area has been the use of Offi-
cial Board documents to which partisan messages
were added, thereby creating the misleading impres-
sion that the Board had endorsed a party to an elec-
tion." (Emphasis supplied.) Like GAF, there has been
no use of a Board document here, nor has there even
been an attempt at resemblance. As I stated in GAF
(at fn. 8):
The critical question in all such cases is whether
the misuse of the official document would have
given the voters the misleading impression that
the Board had granted its support to one of the
parties in the election. Such an impression, we
have held, vitiates the employees' freedom of
choice and undermines their right to an untram-
meled election.
Thus, and because no such official document has
been employed herein which would cause employees
to believe that the Board had endorsed the Peti-
tioner, I would overrule these objections to the elec-
tion. Accordingly, I would certify the Petitioner as
the bargaining representative for the reasons set forth
above.
9 Which relate to the documents designated Appendixes A. B. and C.