S. H. Lynch and Co., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1968

171 N.L.R.B. 1354 (N.L.R.B. 1968)

1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. H. Lynch and Company , Inc. and International
Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America,
AFL-CIO. Case 16-CA-2618
June 14, 1968
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On July 6, 1966, the National Labor Relations
Board issued a Decision and Order' in this proceed-
ing in which it found that Respondent had violated
Section 8(a)(5) of the National Labor Relations
Act, as amended, by refusing to recognize and bar-
gain with the Union after it was certified by the
Board, and ordered Respondent to take certain af-
firmative action designed to remedy the unfair
labor practices. Thereafter, Respondent filed with
the United States Court of Appeals for the Fifth
Circuit its petition to review and set aside the
Board's Order, and the General Counsel filed a
cross-petition for enforcement of the Order. On
June 8, 1967, the court rendered its Decision,'
vacating the Board's Order and remanding the case
to the Board to conduct a full hearing on the issues
raised by Respondent's objections to the election
conducted on November 19, 1965, without limiting
the evidence by considerations of when discovered
or whether previously available, and thereafter to
determine under appropriate Board rules, regula-
tions, and procedures the unfair labor practice
charge. On July 24, 1967, the Board issued an
Order reopening the record and directing a hearing
before a Trial Examiner for a full hearing consistent
with the court's decision.
On September 20, 1967, a hearing was held be-
fore Trial Examiner Max Rosenburg, and on
November 20, 1967, he issued his Supplemental
Decision, attached hereto, in which he found merit
in Respondent's objections and recommended that
the election be set aside and a new election
directed. Thereafter, the Charging Party filed ex-
ceptions to the Trial Examiner's Supplemental
Decision and a supporting brief, and Respondent
filed a brief in support of the Trial Examiner's
Decision.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has con-
sidered the Trial Examiner's Supplemental Deci-
sion, the exceptions and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to
the extent consistent herewith.
As the Trial Examiner finds, there are three areas
of alleged misrepresentation by the Union during its
campaign; i.e., the wage rates of Respondent's own
employees, the wage rates of union employees at
other beer distributors' plants in Houston, and the
comparison of insurance benefits then in force at
Respondent's plant with those received by Houston
employees.
First, the Union understated some of the wage
rates of the very employees it was organizing. The
Trial Examiner found that the subject of Respon-
dent's own employees' wages had been the subject
of campaign discussion for some weeks before the
election, and that the employees were well aware of
what they were receiving. He therefore concluded,
and we agree, that the Union's understatements
were of the type which the employees were capable
of evaluating, and thus did not undermine the em-
ployees' freedom of choice in selecting a bargaining
representative.
Secondly, the Union stated that Houston union
"helpers" were receiving 4-1/2 cents commission
per case which, based on a week in which 1,000 cases
were handled, and added to a base pay of $82, gave
them a weekly pay of $127, compared to a commis-
sion of only 2 cents per case at Respondent's plant.
In fact, Houston helpers were receiving only 2 cents
per case. This discrepancy was discovered by
Respondent approximately 45 hours prior to the
time set for balloting. At a preelection conference
the following morning, November 18, Respondent
inquired of Gerchak if his facts were not wrong.
Gerchak checked the Houston contract and ad-
mitted that the commission rate was indeed 2 cents
rather than 4-1/2 cents. He offered to do whatever
Respondent thought necessary to correct this, sug-
gesting a joint leaflet, but Respondent declined on
the grounds there was not enough time effectively
to reach the employees. That night the Union had a
meeting. Of the 61 unit employees, 35 to 40 were
in attendance. The Union announced to all present
that it had misstated the helpers' commission rate,
and gave the correct rate. The following morning,
November 19, for an hour preceding election time,
' 160 NLRB 113.
' 377 F.2d 558.
171 NLRB No. 167
S. H. LYNCH AND COMPANY, INC.
six employees handed out a letter at the plant en-
trances which informed employees that, whereas it
had been stated that Houston employees were
receiving a 4-1/2 cent-per-case commission, in fact
they were receiving only 2 cents.
The Trial Examiner found that this discrepancy
was gross , that Respondent did not have sufficient
time to reply effectively, and that, in the manner
portrayed by the Union, it constituted a material
misrepresentation which reasonably might be ex-
pected to have a significant impact on the election.
We disagree with his conclusion.
In the total circumstances surrounding the
misrepresentation as to the per case commissions, it
is our opinion that the Union not only did all that it
possibly could to correct that misrepresentation,
but in fact by its statements at the November 18
meeting and in its November 19 leaflet effectively
dispelled any misleading effects the misrepresenta-
tion may otherwise have had on the voting. Unlike
the Trial Examiner, we do not believe that this con-
clusion is foreclosed either by the absence of some
eligible voters from the union meeting or by the
fact that the handbilling the next day was curtailed
before some employees were scheduled to report
for work. In our opinion the nature of the Union's
efforts makes it reasonable to infer that an insignifi-
cant number of voters, if any, were not apprised of
the Union's misstatement before casting their bal-
lots.
Finally, with regard to insurance, the Union's
leaflet stated that Respondent's program cost each
employee $11.50 per month, whereas the insurance
in force for Houston employees was "all paid for by
the Company." While in fact this was true, the Em-
ployer argues that this statement is grossly mislead-
ing and was calculated to mislead the employees
because it implies that Houston gets for nothing
what costs the Employer's employees $11.50,
whereas the "free" insurance coverage in Houston
was substantially less in scope and amount. The dif-
ferences in coverage are set forth by the Trial Ex-
aminer . He finds the differences to be glaring, the
statements of the Union to be half true at best, and
a material misrepresentation that might have im-
peded the employees' right freely to select or reject
a bargaining representative. We do not agree.
What the Union stated in its leaflet was true.
Houston employees were receiving insurance
benefits fully paid for by their employers. The
Union did not state what the terms of Respondent's
policy were; it did not state that Houston em-
ployees were receiving the same insurance benefits;
8 The Trial Examiner states that under the Board 's rule in Peerless
Plywood Company , 107 NLRB 427, "Respondent was prohibited from as-
sembling its employees , if it indeed could , and delivering a corrective
1355
it made no representations whatever with regard to
the scope or quality of either policy. As the Trial
Examiner found, the statements necessarily invited
comparison and we agree that employees would
question the coverage of the respective insurance
programs. However, we see nothing in the state-
ments that would lead employees to assume, rather
than inquire as to whether, the Houston insurance
benefits equaled those of Respondent. In these cir-
cumstances, we cannot find that the leaflet's failure
to disclose coverage discrepancies constituted a
concealment of fact so material as to invalidate the
election, or that the statement in the leaflet
reasonably conveyed any impression that the
Houston insurance program was as comprehensive
as that of Respondent.
Furthermore, we believe that in the circum-
stances of this case Respondent did have adequate
time to answer the Union's representations as to
wage rates and insurance. It was satisfied on
November 17 that "gross" misrepresentations had
been made as to each. It did not communicate with
the Union on this matter until November 18, and
then, as the testimony of Respondent's witness
Buchmeyer, as well as union witness Gerchak,
shows, the Union was informed only of the discre-
pancy as to the 2 versus 4-1/2 cents per case. The
Union offered to do whatever was suggested in
order to correct this, but Respondent repeatedly
stated there was not enough time. This is not the
same as a case where an employer discovers shortly
before an election that some misrepresentation has
been made, but hasn't time to fathom the precise
nature of the misrepresentations and/or has not
available to it the facts with which to refute the
misrepresentation. On November 17 Respondent
had all the facts. It had a copy of the Houston con-
tract from which the facts were drawn, and had
drawn its conclusions even as to why it felt that the
representations as to insurance coverage (discussed
above) were false and misleading. Under the cir-
cumstances, we are not persuaded that Respondent
at that time had insufficient opportunity for com-
municating with employees in a manner that would
remove effectively any confusion among the 61 unit
employees that might have been attributable to the
Union's statements.3
On the basis of the above finding and the entire
record, we conclude that Respondent's objections
to the election were without merit, and we hereby
overrule them. We find that the certification issued
by the Board was therefore valid, that the Union
has, since March 7, 1966, been the exclusive bar-
speech to them during the day .." (Emphasis supplied .) We wish to
make it clear that the Peerless Plywood rule prohibits such electioneering
within 24 hours of a scheduled voting time only if done on company time.
1356 DECISIONS OF NATIONAL
gaining representative of the employees in the ap-
propriate unit set forth below, and that Respon-
dent, by refusing to bargain collectively with the
Union on or about March 14, 1966, and at all times
thereafter, violated Section 8(a)(5) and (1) of the
Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, oc-
curring in connection with its operations described
in the appropriate unit, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)(5)
and (1) of the Act, we shall order that it cease and
desist therefrom and, upon request, bargain collec-
tively with the Union as the exclusive representa-
tive of all employees in the appropriate unit and, if
an understanding is reached, embody such un-
derstanding in a signed agreement.
CONCLUSIONS OF LAW
1. S. H. Lynch and Company, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of Amer-
ica, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All route salesmen, helpers, contact salesmen,
advertising and merchandising men,
warehousemen, and draft beer line cleaner, but ex-
cluding guards, office clerical employees,
watchmen , mechanics , and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. On March 7, 1966, and at all times thereafter,
the above-named labor organization was and has
been the certified and exclusive representative of
all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about March 14, 1966, and
at all times thereafter, to bargain collectively with
4 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
LABOR RELATIONS BOARD
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, S. H. Lynch and Company, Inc., Dallas, Tex-
as, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages , hours, and other terms and conditions of
employment with International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, as the exclusive
and duly certified bargaining representative of its
employees in the following appropriate unit:
All route salesmen, helpers, contact salesmen,
advertising and merchandising men,
warehousemen , and draft beer line cleaner, but
excluding guards, office clerical employees,
watchmen, mechanics, and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its Dallas, Texas, plant copies of the
attached notice marked "Appendix."' Copies of
Order " the words "a Decree of the United States Court of Appeals Enforc-
ing an Order."
S. H. LYNCH AND COMPANY, INC. 1357
said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with International Union of United Brewery,
Flour, Cereal, Soft Drink and Distillery Work-
ers of America, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive represent-
ative of all employees in the bargaining unit
described below with respect to wages, hours,
and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agree-
ment. The bargaining unit is:
All route salesmen, helpers, contact
salesmen , advertising and merchandising
men, warehousemen, and draft beer line
cleaner, but excluding guards, office cleri-
cal employees, watchmen, mechanics, and
supervisors as defined in the Act.
S. H. LYNCH AND
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 8A24 Federal Office Building, 819 Taylor
Street, Fort Worth, Texas 76102, Telephone
334-3921.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG , Trial Examiner: Pursuant to a
Stipulation for Certification Upon Consent Election
approved by the National Labor Relations Board's
Regional Director for Region 16 on November 1,
1965, an election by secret ballot was conducted on
November 19, 1965, among Respondent's route
salesmen , helpers, contact salesmen , advertising
and merchandising men, warehousemen , and draft
beer line cleaner at its installation in Dallas, Texas.'
Of approximately 61 eligible voters , 38 cast valid
votes for , and 22 cast valid votes against , the peti-
tioning Union , International Union of United
Brewery, Flour , Cereal , Soft Drink and Distillery
Workers of America, AFL-CIO, herein called the
Union . On November 23, 1965, Respondent filed
timely objections to the election . In these objec-
tions, Respondent alleged that , less than 2 days be-
fore the balloting , Respondent learned that the
Union had distributed a leaflet to its employees
which purported to compare the wage and fringe
benefits provided under a contract which the Union
had negotiated with other beer distributing compa-
nies in Houston , Texas, with the wage and fringe
benefits then afforded by Respondent . The objec-
tions further asserted that this leaflet misstated the
facts and gave a misleading and distorted com-
parison by exaggerating purported wage rates and
insurance benefits conferred by the Houston agree-
ment , and by grossly understatin g certain of the ex-
isting wage rates and insurance benefits granted to
Respondent's employees . Specifically , the objec-
tions set forth approximately 10 asserted instances
of false and misleading representations by the
Union concerning matters about which the em-
ployees possessed no independent knowledge suffi-
cient to enable them to recognize and properly
evaluate the information ; averred that the Respon-
dent had been precluded by time considerations
from verifying the misstatements and from making
any effective reply to the employees concerning
' Case 16-RC-4095. Respondent is engaged in the warehousing and dis-
tribution of Schlitz beer and maintains its place of business in Dallas, Tex-
as, as the Board has heretofore found. S H. Lynch and Company, Inc., 160
NLRB 113.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(hem prior to the election; and prayed that the elec-
tion be set aside for these reasons and that a new
election be conducted.
Following the filing of the objections, the Re-
gional Director undertook an investigation thereof
and, on January 12, 1966, issued his report on ob-
jections. In that report, the Director, without hold-
ing a hearing on the objections, concluded that
Respondent had ample opportunity in advance of
the election to correct any "false information" dis-
seminated by the Union but declined to do so; that
the Union had made a timely, albeit "last-minute,"
attempt to correct the misrepresentations contained
in its leaflet; that the employees were aware of their
remuneration and other benefits and therefore were
capable of evaluating the comparisons made by the
Union; and that the election should not be
rescheduled. The Director therefore recommended
that the Union be certified as the collective-bar-
gaining representative of the employees involved.
Thereafter, Respondent filed timely exceptions to
the Director's report. In these pleadings, Respon-
dent contended that substantial and material issues
of fact existed concerning the Union's preelection
misrepresentations and understatements, as well as
Respondent's opportunity effectively to rebut them,
and that it should have been afforded a hearing on
these issues. On May 7, 1966, after considering the
Respondent's objections, the Director's report, and
Respondent's exceptions thereto, the Board issued
a Certification of Representative pursuant to which
the Union was adjudged the exclusive bargaining
agent of the employees in the appropriate unit.
In the meantime, and on March 7, 1966, the
Union filed charges with the Board alleging that
Respondent had refused to bargain with the former
in derogation of the obligations imposed under Sec-
tion 8(a)(5) of the Act.2 By stipulation dated April
13, 1966, the parties submitted the unfair labor
practice case directly to the Board on an agreed-
upon record,3 for findings of fact, conclusions of
law, and a Decision and Order, waiving a hearing
before a Trial Examiner." In a Decision and Order
dated July 6, 1966,' the Board, after making vari-
ous subsidiary findings with respect to jurisdiction
and the status of the Union as a labor organization
within the purview of the Act and following a
review of the record in the prior representation
proceeding, found that the Union had been duly
certified in an appropriate unit of employees at
Respondent's installation and that Respondent had
unlawfully refused to bargain with the Union con-
cerning those employees.
On July 27, 1966, Respondent filed a petition to
review and set aside the Board 's Decision and
Order with the United States Court of Appeals for
the Fifth Circuit, and the General Counsel cross-
petitioned to enforce said Order . In an opinion
rendered on June 8, 1967,8 the court vacated the
Order and remanded the case for a hearing on
Respondent 's objections to the election, citing as
authority therefor its decision in U. S. Rubber Co. v.
N.L.R.B.7 By order of July 24, 1967,; the Board de-
cided to accept the remand and directed that a
further hearing be held in the complaint proceeding
consistent with the remand , and that such hearing
be conducted before a Trial Examiner to be duly
designated by the Chief Trial Examiner . It also
directed that , upon the conclusion of the trial, the
presiding Trial Examiner prepare and serve upon
the parties a decision containing findings of fact
upon the evidence received , conclusions of law,
and pertinent recommendations.
With all parties represented , this proceeding was
heard before me in Dallas, Texas, on September 20,
1967. All parties were afforded full opportunity to
present evidence , to examine and cross -examine
witnesses , to argue orally at the close of the hear-
ing, and to file briefs . Oral argument was waived by
all parties . Briefs have ' been received from the
Respondent and the Union which have been duly
considered.
Upon consideration of the entire record, includ-
ing the briefs filed with me, and upon my observa-
tion of the demeanor of each witness while testify-
ing, I make the following:
FINDINGS OF FACT
The facts adduced before me are not in dispute
and I find them to be as follows.
Pursuant to the Stipulation for Certification
Upon Consent Election previously adverted to, an
election was conducted at the Respondent's plant
between 7 and 7:30 a.m. on November 19, 1965. In
anticipation of the election, and on November 12,
1966, the Union mailed a leaflet to each employee
in the bargaining unit entitled "It Does Not Cost-
It Pays to Belong: Look at the Comparison and See
for Yourself." This leaflet, which was drafted and
signed by Union International Representative Ed-
ward Gerchak, purported to contrast the wages and
fringe insurance benefits provided under a contract
between the Union and several beer distributors in
Houston, Texas, with those afforded by Respondent
' Case 16-CA-2618.
' Comprising the charge , the complaint and notice of hearing, the answer
to the complaint , and the entire record in Case 16-RC-4095.
4 The parties stipulated that , on March 8, 1966, the Union requested
Respondent to bargain and that on March 14 , 1966, Respondent declined
to do so in order to obtain judicial review of the Board's decision overruling
Respondent 's objections to the election and the certification of the Union
" 160 NLRB 113.
° 377 F.2d 558 (C.A. 5).
7 373 F.2d 602 (C.A. 5). In that decision , the court stated that "In the
representation proceeding it [the Board] should not have ruled on the em-
ployer's objections to the election without a hearing , for there were sub-
stantial and material issues which could be determined properly only by a
hearing ." At 604. The objections in that case alleged that the union , within
24 hours prior to a scheduled election , had made a false comparison
between wages and fringe benefits paid by the employer and those afforded
by other companies.
S. H. LYNCH AND COMPANY, INC. 1359
to its unrepresented employees in Dallas . The leaflet contained the following:
Houston
Union /Houston Contract/
Member
Dallas /Respondent's
Non-Union employees/
Sclilitz Employee
BOTTLE ROUTES
$52.65
7-1/2 Cents
Weekly Base Pay
Commission per Case
$35.00
4-1/2 Cents
Using 1000 Cases for Example
$127.65 Total Weekly Pay $80.00
KEGMEN
$95.04 A Week $85.00 to $115.00
25 cents per half Commission None
Using 150 Halves
$132.50
For Example
Total Pay to $115.00
HELPER ON ALL TRUCKS IN'HOUSTON SELLING OVER 500 CASES A WEEK
HELPER RATES
$82.00 Base Pay $40.00
4-1/2 Cents Commission Per Case 2 Cents
Using 1000 Cases
$127.00
$2.71 per hour
$108.40
8
All paid for by the Company
Paid Holidays 3 Maximum
INSURANCE
At 9:30 p .m. on Wednesday , November 17,
1966, Charles C. Crumpley , manager of Respon-
dent 's beer department , observed the union leaflet
on his office desk which had been sent to him by a
competitor . After reading the document , Crumpley
delivered it to S . H. Lynch , Respondent 's president,
who in turn placed it on the desk of James A. Tyler,
Jr., Respondent 's secretary-treasurer . Tyler was out
of his office at the time , but when Tyler returned,
which was between 10 and 10 : 30 a.m., he
discovered the leaflet , read it , and decided to com-
pare its contents with a copy of the Union's
For Example
Total Pay
WAREHOUSEMAN
$85.00
$60.00
$1.25 to $1.75/Hr.
Total Weekly Pay---40 Hours $50.00 to $73.00
Without Overtime
It Costs You as Much
As $11.50 a Month
Houston contract which had come into his posses-
sion in late October 1966. After reading both docu-
ments, Tyler noticed that the leaflet misrepresented
the wages paid to helpers under the Houston con-
tract by stating that these helpers received a 2-1/2-
cent-per-case commission more than Respondent's
helpers received; misrepresented the total weekly
pay for Houston helpers at $127 when, in fact, the
Houston contract provided for only $102 per week
for this job classification; understated the wages
paid to Respondent's helpers, as well as the wages
paid to Respondent's "bottle route" urivers; and
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misrepresented the insurance benefits afforded by
Respondent. After discovering these misrepresenta-
tions and understatements, Tyler brought them to
the attention of Lynch at 11 a.m. and they jointly
decided to consult with counsel. Lynch and Tyler
then contacted Attorney Jerry L. Buchmeyer, and
explained the situation. Counsel advised that he
needed time to study and appraise the leaflet and
the Houston agreement, and he scheduled a meet-
ing with his clients for Thursday morning,
November 18, 1966. Tyler testified that no attempt
was made to notify the employees of any misstate-
ments and understatements at this time.8 In this
connection, Tyler also testified,that the drivers and
helpers, who comprise 46 of the 61 employees in
the unit, normally report for work between 7 and
7:45 a.m., make their deliveries, return to the plant
anywhere between 11 a.m. and 4 p.m., and then
check out.`'
Lynch and Tyler met with Attorney Buchmeyer
on the morning of November 18, 1966, and the dis-
crepancies set forth in the leaflet as opposed to the
Houston contract and Respondent's group in-
surance plan were explored. As a result of their
discussions, and after considering the feasibility and
efficacy of notifying the men of the Union's
misrepresentations by telegram, leaflet, letter, or
the posting of a notice on the bulletin board, Attor-
ney Buchmeyer reached the conclusion that "it was
too late to effectively communicate with anybody."
At 4 p.m. on the afternoon of November 18, a
preelection conference was convened by a Board
agent with Attorney Buchmeyer, Lynch, Tyler, and
Crumpley representing the Respondent, and Inter-
national Representative Gerchak appearing on be-
half of the Union. Before the conference com-
menced, Attorney Buchmeyer spoke to Gerchak
and mentioned that the former had noticed a dis-
crepancy between the per-case commission paid to
Houston helpers as reflected in the Union's leaflet
and that which appeared in the Houston contract.
Attorney Buchmeyer inquired whether the Houston
contract had been amended since its execution so
that the leaflet correctly set forth the commission
rate. After reviewing the contract, Gerchak readily
confessed that the leaflet was in error and that the
helpers covered by the Houston agreement were
not receiving a greater commission than Respon-
dent's men , and that the total weekly wage of the
Houston helpers was accordingly miscalculated.
During the preelection conference, Gerchak
requested a private audience with the Board agent,
and together they left the room. Upon their return,
Gerchak asked Buchmeyer what Respondent's posi-
tion was with respect to the inaccuracy concerning
8 Taylor testified without contradiction that had Respondent posted a
notice on the bulletin board correcting the Union's misrepresentations on
the afternoon of November 17, "it wouldn 't be noticed " by the employees
I It is also Tyler 's undemed testimony that Wednesdays constitute the
lightest business day in the week Accordingly, the drivers and helpers
would be expected to return to the plant earlier It should be noted that
November 17, the date on which Tyler, Lynch, and Crumpley received the
leaflet, fell on a Wednesday
the helpers' commission rate and weekly wage, and
Gerchak suggested that both the Union and the
Respondent draft and disseminate a joint leaflet or
letter to the employees explaining the inaccuracies
which appeared in the original leaflet. Buchmeyer
requested time to confer with his clients and, after
their private discussion, Buchmeyer informed
Gerchak that "we hadn't had a chance to fully as-
sess our position. We weren't going to waive any of
the rights that we had. We did not think a letter or
a telegram or a leaflet, for that matter, would be ef-
fective at this date." Gerchak then suggested that
the election be postponed so that the Union and the
Respondent could apprise the employees of the in-
accuracies in the union leaflet, and Buchmeyer
agreed to a postponement. The Board agent was in-
formed of the request for a postponement, and he
thereupon telephoned his superiors for their ap-
proval. However, and according to Gerchak's
testimony, the agent was instructed that "even with
the parties' consent the election would not be post-
poned; that it would proceed as scheduled the next
morning. That if any arty had an objection to the
election it could be fled and it would be heard in
due course." After the mechanical details for the
conduct of the election were ironed out, the con-
ference ended.
Immediately thereafter, Gerchak took steps to
correct the misstatement regarding helpers' com-
missions and weekly wages which appeared in the
leaflet . Gerchak arranged for the production of
another leaflet addressed to all of Respondent's em-
ployees which recited that "In my letter to you in
which I compared the Houston rates against those
being paid to the Schlitz employees here [at non-
union companies in Dallas], I stated that the rate for
'hel er' in Houston was $82 a week, base pay, and
4-1/2 cents a case commission. The actual rate
being paid in Houston is $82 a week and 2 cents a
case commission ." This leaflet contained Gerchak's
signature and his union designation. However, no
corrective mention was made in this document of
any other item contained in the original leaflet. At
a union meeting which had previously been
scheduled for the evening of November 18,
Gerchak informed an assemblage of between 35
and 40 employees (out of a unit of 61) of the actual
figures paid to helpers covered by the Houston con-
tract but made no reference to insurance benefits.
In Gerchak's words, he told the employees "during
the course of my talk to them ... that the Company
attorney had called to my attention an error ...
and that the rate paid to the Houston employees
was wrong, and that the actual rate of pay on com-
mission was 2-cents a case. "10 Following his com-
10 On November 29, 1965, 10 days after the election , the Union dis-
tributed a new leaflet to employees of other nonunion beer distributors in
Dallas whose employees it had undertaken to organize In this leaflet, the
Union corrected its earlier misrepresentations concerning helpers' pay
With respect to insurance , the Union modified its earlier language relating
to the Houston insurance benefits by stating "All paid for by the Com-
pany-Schlitz claims theirs is better "
S. H. LYNCH AND COMPANY, INC.
ments, Gerchak solicited volunteers from among
the men in attendance to distribute the more
truthful explanatory leaflet to employees as they re-
ported for work on the following morning. At 6
a.m. on November 19, Gerchak and the six em-
ployees whom he had impressed into service sta-
tioned themselves at the plant entrances and dis-
tributed the leaflets to the employees who entered.
At 7 a.m., the hour for the scheduled election, the
handbilling ceased . As heretofore indicated, 46 of
the 61 employees in the unit were classified as
truckdrivers or helpers who normally reported for
work between 7 and 7:45 a.m. each day . However,
there is nothing in the record to indicate whether
the remaining employees reported for duty at the
same time or at an earlier hour . Rounding out the
evidence , Gerchak testified that he obtained infor-
mation concerning wages which Respondent paid
to its employees from the employees themselves.
Tyler admitted that he informed each employee at
the time of their hire what their wages, commis-
sions, and incentive pay would be , and that "it is
pretty common knowledge " as to what the em-
ployees' "wages and pay is."
As chronicled above , the Union won the election
by a vote of 38 to 22 . Thereafter , Respondent's ob-
jections were filed to the election which triggered
the instant litigation.
Conclusions
In Hollywood Ceramics Company, Inc.," the
Board , in defining its rules for determining whether
the integrity of a representation election had been
so impaired that it should be set aside, observed:
The basic policy underlying [ these rules], as
well as the other rules in this election field, is
to assure the employees full and complete
freedom of choice in selecting a bargaining
representative. The Board seeks to maintain, as
closely as possible, laboratory conditions for
the exercise of this basic right of the em-
ployees. One of the factors which may so
disturb these conditions as to interfere with the
expression of this free choice is gross
misrepresentation about some material issue in
the election . It is obvious that where em-
ployees cast their ballots upon the basis of a
material misrepresentation , such vote cannot
reflect their uninhibited desires, and they have
not exercised the kind of choice envisaged by
the Act. For this reason, the Board has refused
to certify election results where a party has
" 140 NLRB 221.
Id. at 223.
13 Id. at 224.
" Id. at 225.
15 See Hollywood Ceramics Company, Inc., 140 NLRB 221. See also
N.L.R.B. v. Houston Chronicle Publishing Company, 300 F.2d 273, 280
(C A. 5): "Purportedly authoritative and truthful assertions concerning
wages and pensions of the character of those made in this case are not mere
1361
misrepresented some material fact, within its
special knowledge , so shortly before the elec-
tion that the other party or parties do not have
time to correct it, and the employees are not in
a position to know the truth of the fact as-
serted.12
That tribunal then restated the rules regarding
misrepresentations made by parties prior to an elec-
tion:
We believe that an election should be set aside
only where there has been a misrepresentation
or other similar campaign trickery, which in-
volves a substantial 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 sig-
nificant impact on the election.13
In its decision in that case , the Board found that the
participating union had misstated the wages paid to
employees at other plants with those received at the
participating employer's operation , that wage rates
constituted "a matter of utmost concern to the em-
ployees, " and that the misstatements conveyed "a
substantially erroneous picture of the comparative
wage situation.
In the instant proceeding, it appears from the
record before me that both the Regional Director
and the Board deemed the Union 's claim that
Houston helpers received a commission which was
2-1/2 cents per case greater than that accorded
Respondent 's helpers, and that the former earned a
weekly wage of $127 compared to the $60 afforded
to Respondent ' s men when in fact the Houston help-
ers earned the same commission as Respondent's
men and were paid only $102 weekly , as a gross
and false misrepresentation . I glean this from the
Director 's characterization of this claim as "false
information" in his report on objections , and the
Board 's subsequent adoption of the report. How-
ever , even apart from these considerations, I am
convinced that the Union , having been a coauthor
of the Houston contract , possessed a special
knowledge of the per-case commission rates af-
forded under that agreement as well as the weekly
rates paid to the Houston helpers, a knowledge
which was not readily available to Respondent's
employees . I conclude that the comparison of those
rates, in the manner portrayed by the Union, with
Respondent 's rates, constituted a material
misrepresentation ( a difference of more than 100
percent) which reasonably might be expected to
have a significant impact on the election conducted
on November 19, 1966.15
prattle; they are the stuff of life for Unions and members, the selfsame sub-
jects concerning which men organize and elect their representatives to bar-
gain."
The Union appears to claim that these misrepresentations were the
product of inadvertence. However, it is immaterial for the purposes of deci-
sion whether they were deliberately made or not. See Hollywood Ceramics
Company, Inc, and N L.R.B v. Houston Chronicle Publishing Company,
supra.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union 's understatement of the wages which
Respondent 's employees received is of a different
breed , however . The Union 's leaflet stated that the
weekly base pay for Respondent 's helpers was $40
when in fact it was $45 ; that these helpers were
paid a 2-cent-per-case commission when in fact the
commission ranged from 1-1/2 to 3- 1/2 cents in ad-
dition to an extra commission of 20 percent based
on a graduated scale ; that the weekly base pay of
$35 for bottle route drivers as set forth in the
leaflet failed to show that such employees were ac-
tually paid from $35 to $55 per week depending on
length of service with Respondent ; that bottle route
drivers were afforded a commission of 4-1/2 cents
per case when in reality the commission amounted
to 5-1/2 cents for quart containers and 4 - 1/2 cents
for all others; that these drivers received weekly
wages and commissions of $80 when in fact they
were additionally afforded a monthly incentive pay
ranging from $ 15 to $150 ; and the leaflet failed to
state that helpers received incentive pay each
month up to $75 which had the effect of escalating
their weekly base rate . In his report on objections,
the Regional Director found that these wage and
commission matters were not within the peculiar
knowledge of the Union; that S. H. Lynch, Respon-
dent 's president , delivered a speech to his em-
ployees on November 4, 1966 , some 2 weeks be-
fore the election , in which he touched on these sub-
jects;16 and that the employees themselves were
aware of their remuneration . Consequently, he
found that the employees were capable of evaluat-
ing this information and, concluded that these
representations did not impinge upon the regularity
of the election.
I have heretofore found , based upon the uncon-
troverted testimony of Respondent Secretary-Treas-
urer Tyler, that each employee was informed of his
wage rate , commissions , and incentive pay on the
date of his hire , and that these items were of
"pretty common knowledge " at the plant . Indeed,
Lynch himself expanded on the incentive program
when he addressed his emplo yees at the plant on
November 4, 1966. Surely, if anyone knew what
the wages, commissions, and incentives afforded to
Respondent 's employees were , it was the employees
themselves , for not only had they been informed by
Respondent about these items, but they were the
ones who actually received the remuneration. Hav-
ing obtained the Union's leaflet on November 12,
1966, a week prior to the election, the employees
had ample time in which to assay the wage data
contained therein against their pocketbook or by
consultation with their Employer. This is not a case
where "the promulgating party [ the Union] had
special knowledge of the facts asserted , thus mak-
ing it more likely that the employees would rely on
them;"17 for International Representative Gerchak
testified without contradiction that he obtained the
wage information from the employees . Accepting
this testimony , as I do , it seems clear that the em-
ployees would not have relied upon Gerchak's
recitation of Respondent's monetary benefits in
total disregard of their more personal and superior
knowledge. Accordingly, I conclude that the
Union 's understatement of the wages, commissions,
and incentive pay which Respondent's employees
assertedly received did not undermine the em-
ployees ' full and complete freedom of choice in
selecting a bargaining representative.
Turning to the Union 's insurance claim, the
leaflet represented that the employees covered by
the Houston contract received insurance benefits
which were "All paid for by the Company,"
whereas the Respondent's companion benefits were
portrayed as costing "As Much As $11.50 a
Month ." Respondent argues that , because its pro-
gram of insurance contained much broader
coverage than that offered under the Houston
agreement , the foregoing quotation in the leaflet
constituted a false representation that the benefits
under the Houston agreement were equivalent in
scope and amount to those provided by Respon-
dent , and that the necessary and inescapable in-
ference from this comparison was that Respon-
dent's employees were paying $11.50 per month for
the same insurance benefits which the Houston
members obtained without charge . In terms of dol-
lars and cents , Respondent's employees were in-
deed assessed the amount stated in the Union's
leaflet for insurance protection , while the Houston
employees paid nothing for their coverage. How-
ever , the record clearly shows that Respondent pro-
vided major medical coverage for employees in the
sum of $10 ,000, whereas the Houston employees
received none ; that Respondent 's employees were
afforded life insurance coverage in the amount of
$5,000 for each employee whose term of employ-
ment was 10 years or longer and $2,000 for all
others with lesser tenure, while all Houston em-
ployees received only a $2,000 policy regardless of
length of service; that hospitalization benefits pro-
vided by Respondent amounted to $15 per day for
room and $300 for extras , whereas the Houston
personnel received $ 12 and $200 , respectively; that
surgical benefits under Respondent 's program
totaled $300 for employees and $300 for their de-
pendents , yet the Houston members only obtained
coverage in the amount of $250 and $200, respec-
tively ; and that Respondent , through self-insurance,
offered accident and health benefits under which it
paid its employees the full amount of their wages
11 In that speech , Lynch is admittedly quoted as having said: "Monthly
incentive programs based on quota-In addition to the regular salary and
commission the company provides maximum of $150.00 per mo. bonus on
Schlitz-$20.00 per month bonus on Old Milwaukee-For our driver
salesmen and 1/2 of the amount they earn goes to their helper-This ap-
plies to package routes-Draft beer routes maximum $150.00 per mo.
based on quota."
' See N.L.R.B. v. Houston Chronicle Publishing Company, supra at 278.
S. H. LYNCH AND COMPANY, INC. 1363
and commissions during periods of illness or in jury,
while the Houston employees received only $30 per
week for 13 weeks.
In its objection relating to the Union 's statements
in the leaflet concerning insurance , Respondent
provided the Regional Director with the foregoing
information . In disposing of this objection , the Re-
gional Director concluded in his report that "Since
the employer has submitted no evidence that the
union attempted to compare insurance benefits or
coverage during the campaign , it is recommended
that this part of the Employer's objections be over-
ruled ." It would seem to this Trial Examiner that a
statement to the effect that employees of employer
"X" pay $ 11.50 for insurance coverage , whereas
the employees of employer "Y" pay nothing at all,
necessarily invites comparison of the benefits of-
fered by each . The ordinary worker, to whom in-
surance is a vital factor in his employment relation-
ship , is just as much concerned about his coverage
as he is with the cost of his participation in a pro-
gram . 18 In the context of an election campaign,
where a labor union seeks to enlist the collective
support of employees by deprecating the amount of
benefits which their employer afforded ( as did the
Union in its leaflet regarding wage rates ), it is only
logical to infer that the average employee, when
told that he is being required by his employer to
pay for insurance while his unionized counterpart
at another plant receives insurance gratis, would
reasonably be led to believe that the benefits at
both installations were identical . Although Respon-
dent 's employees were aware of the terms of their
group insurance plan, so far as this record stands,
only the Union knew of the scope and coverage of
the plan created under the Houston contract and
the discrepancies between the benefits provided
under each which were , to say the least, glaring. It
is true that , superficially , all that the Union 's leaflet
contained was a statement that Houston employees
paid no insurance premiums while Respondent's
employees did. But this was only a half truth. As
the court observed in N.L .R.B. v. Trancoa Chemical
Corporation ,l9 "A half truth means a half lie, and a
half lie may be, or may not be, a substantial
misrepresentation ." That even the Union recog-
nized its deception in this regard is reflected in the
wording of the leaflet which it subsequently dis-
tributed to other nonunion employees in the Dallas
pant . For, in addition to the phrase "All paid for
by the Company" with reference to the Houston in-
surance benefits , the Union judiciously added the
phrase "Schlitz [nonunion employers ] claims theirs
is better.
After a careful review of the evidence presented
on this issue , I am persuaded and conclude that the
Union 's reference to insurance in its campaign
leaflet caused the employees to believe that they
were being assessed $11.50 per month by Respon-
dent for the same insurance benefits which the
Union had obtained for its Houston members at no
charge; that, in fact, Respondent's insurance
coverage was far superior to that which obtained
under the Houston contract; that Respondent's em-
ployees possessed no special knowledge of the
terms of the Houston insurance plan with which to
evaluate the Union's propaganda; that the represen-
tation relating to insurance constituted a gross sub-
version of the truth; and that the Union's claim
amounted to a material misrepresentation which
freely tomight have impeded the employees' right 20
select or reject a bargaining representative.
I have heretofore concluded that, prior to the
election, the Union grossly misrepresented the
weekly wage rates and commissions which Respon-
dent's helpers received as opposed to those paid to
helpers covered by the Houston agreement, and
that the Union similarly misrepresented the com-
panion insurance benefits. In his report on objec-
tions, the Regional Director found, at least with
respect to the misrepresented wage and commission
rates paid to helpers, that Respondent had ample
time before the balloting to make an effective reply
to the Union 's false assertions but declined or failed
to do so. On the basis of the entire record made in
this proceeding, I am constrained to disagree.
The undisputed testimony shows that Respondent
first learned of the contents of the Union's leaflet at
9:30 a.m. on November 17, 1966, less than 2 days
before the scheduled election, when Crumpley
found it lying on his desk. After perusing the docu-
ment, Crumpley gave it to Lynch who in turn
delivered it to Tyler for more thorough study. Tyler
sat down and commenced to make a comparison
between the information outlined in the leaflet and
the information set forth in the Houston contract
and, by 11 a.m., he reported his preliminary
findings to Lynch. Sometime later that day,
Respondent's officials considered the situation seri-
ous enough to consult with counsel, and the advice
of Attorney Buchmeyer was sought. Because of his
apparent unfamiliarity with the leaflet, as well as
the Houston agreement and Respondent's group in-
surance plan, counsel deferred meeting with his
clients until Thursday morning, November 18, in
order to review and compare the documents then in
their possession. On the morning of November 18,
Buchmeyer met with Lynch, Tyler, and Crumpley
and, after a further review of the leaflet and the
corresponding documents, they arrived at a consen-
sus that the leaflet grossly misrepresented wages
and insurance benefits. These men thereupon
turned to a consideration of how best they could
communicate with the employees to correct the
is See N .L.R.B. v . Bata Shoe Company, 377 F 2d 821 (C A. 4).
" 303 F . 2d 456 , 459, fn. 3.
20 See N . L.R.B. v . Trancoa Chemical Corporation , 303 F 2d 456, 461
(C.A. 1): "We are not clear whether the Board 's expression ' preclude .
freedom of choice ' means that the burden is upon the respondent to show
that the employees were necessarily misled , or only that it is sufficiently
likely that it cannot be told whether they were or were not The latter is the
appropriate rule. N L R B v Trinity Steel Co. 5 Cir., 1954, 214 F.2d 120."
353-177 0 - 72 - 87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misrepresentations . After assessing the potential ef-
fectiveness of sending letters, telegrams , or leaflets
to the employees, or of the posting of a notice on
the plant bulletin board, Buchmeyer reached the
conclusion that he could not effectively reach all of
the electorate through these media at this late date.
Under the Board's rules governing misrepresenta-
tions as elaborated in Hollywood Ceramics,F11 a party
must not be prevented from making a timely, "ef-
fective reply ' to such misrepresentations if the
results of an election are to stand. When Respon-
dent received the Union's leaflet on November 17,
1966, there remained less than 48 hours before the
balloting was to commence. The Union's leaflet
contained a number of representations regarding
wage rates paid to bottle route drivers, kegmen,
helpers, and warehousemen, as well as overtime,
holidays, and insurance benefits. It is apparent on
the record that Tyler, Lynch, and Crumpley spent
considerable time on November 17 comparing the
Union's leaflet with the Houston contract and
Respondent's insurance plan. Having come up with
a myriad of representations which they believed to
be false, these officials took the reasonable and
practical approach and contacted their labor rela-
tions counsel to ascertain what course of action
they could or should pursue. At this juncture, time
was, to be sure, of the essence. However, Respon-
dent was entitled to seek the best advice that it
could lest, through haste, it too might be charged
with misrepresentations in its rebuttal. Respon-
dent's action in notifying counsel was speedily
taken, and a meeting between attorney and client
was scheduled at the earliest opportunity consistent
with the needs of counsel to study the pertinent
documents. Accordingly, I am unable to conclude
that Respondent deliberately or unreasonably
dragged its feet on November 17 in rebutting the
Union's false assertions . Nevertheless, even were I
to aassume that Respondent's officials were pos-
sessed of sufficient information on that day to chal-
lenge the Union's misrepresentations , I am not con-
vinced that they could have effectively commu-
nicated their views to the employees prior to the
election . Any reply, of necessity, would have had to
be carefully formulated and drafted, and by the
time this was accomplished, most of the drivers and
helpers, who constituted the bulk of the employ-
ment complement, might have already left work on
Wednesday inasmuch as Tyler testified without
contradiction that Wednesday was a light delivery
day with the result that these employees would
have left the plant early. Furthermore, Tyler also
testified that a posted notice would have been to no
avail because it would not likely have come to the
attention of the men. Letters might have been
posted to the employees that afternoon or evening,
but there is no assurance that these missives would
have reached all employees before 7 a.m. on
November 19, the hour set for the election. To be
sure, Respondent might have dispatched telegrams
to the men, but in view of the obvious length that
these dispatches would have assumed and the
number of individuals to whom they would have
been sent (61), the cost of this mode of communi-
cation might well have been prohibitive.
Nor would Respondent have been in any better
position to reply when its officials met with counsel
on the morning of November 18 and confirmed the
extent of the Union's misrepresentations. Under the
Board's Peerless Plywood rule,22 Respondent was
prohibited from assembling its employees, if it in-
deed could, and delivering a corrective speech to
them during the day inasmuch as all electioneering
of this nature is proscribed under that rule. Further-
more, it is less likely that the employees would have
timely received a letter of rebuttal if mailed to them
on November 18. Moreover, the distribution of
leaflets, the posting of notices, or the dispatch of
telegrams would have been as futile or expensive on
November 18 as on November 17.
Following the preelection conference on
November 18, International Representative
Gerchak drafted a leaflet setting the record straight
as to the wages and commissions paid to helpers,
announced the correction at a union meeting held
that evening, and distributed the leaflets on the
morning of the election at the entrances to the
plant. I am not persuaded that these activities effec-
tively righted the Union's misdeeds. Apart from the
fact that the leaflet and the announcement cor-
rected only the misrepresentations relating to the
wages and commissions and did not encompass the
misrepresentations regarding the insurance items,
which I have heretofore found, the record shows
that slightly more than a half of the employees in
the voting unit attended the union meeting.
Moreover, by Gerchak's own admission, employees
who might have reported for work prior to 6 a.m.
on November 19 would not have received the
Union's corrective leaflet. Accordingly, I find and
conclude that Respondent did not have sufficient
time prior to the conduct of the election to make
an effective reply to the Union's misrepresentations
concerning wages and insurance benefits, and that
the Union s actions on the evening of November 18
and the morning of November 19 were ineffectual
conclusively to remove its material misrepresenta-
tions from the minds of the voters.
This is a case in which the administrative process
unfortunately broke down. When the parties met
with the Board agent at the preelection conference
on November 18, Gerchak was quick to confess
that the Union had grossly misrepresented the help-
See fn . 13, supra.
" Peerless Plywood Company, 107 NLRB 427, 429. "Accordingly, we
now establish an election rule which will be applied in all election cases.
This rule shall be that employers and unions alike will be prohibited from
making election speeches on company time to massed assemblies of em-
ployees within 24 hours before the scheduled time for conducting an elec-
tion. Violation of this rule will cause the election to be set aside whenever
valid objections are filed."
S. H. LYNCH AND COMPANY, INC. 1365
ers' wages and commissions and readily realized
that Respondent was barred from effectively
reaching its employees with its version of the facts
because of time considerations . Gerchak himself
suggested that the election might be postponed so
that both adversaries could fully and truthfully ap-
prise the employees of the correct facts, and Attor-
ney Buchmeyer agreed that this was the most salu-
tary way in which to resolve the issue if a fair and
free election was to be had. When the matter of
postponing the election was presented to the
Board 's Regional Director, the request was denied
because , in his view , it was designed to obtain "ad-
ditional time for electioneering. 'For want of a few
days delay, 2 years of litigation has followed.l
heretofore concluded that, less than 2 days
before the election, the Union grossly represented
to the employees in the appropriate unit the wages
and commissions paid to helpers covered under the
Houston contract as opposed to those paid to
Respondent's helpers and grossly misrepresented
the insurance benefits which flowed to employees
covered by that agreement in contrast to the com-
panion benefits received by Respondent's men. I
have also found that the Respondent was prevented
from making an effective reply in rebuttal to these
misrepresentations because of their timing in rela-
tion to the election, and that the Union did not ef-
fectively retract its falsehoods before the balloting
began. I shall therefore recommend that Respon-
dent's objections to the election which relate to
those misrepresentations be sustained, that said
election be set aside, and that a second election be
conducted.
RECOMMENDED ORDER
It is hereby recommended that the election in
Case 16-RC-4095 be set aside and that a second
election be conducted.23
" In view of my disposition of the issues presented herein, I deem it un-
necessary to consider the Union's prayer for certain remedial relief con-
tained in its brief filed with me.