Cambridge Wire Cloth Company, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1981

256 N.L.R.B. 1135 (N.L.R.B. 1981)

CAMBRIDGE WIRE CLOTH COMPANY, INC. 1135
The Cambridge Wire Cloth Company, Inc. and
United Steelworkers of America, AFL-CIO.
Cases 5-CA-9173 and 5-RC-10138
July 6, 1981
SUPPLEMENTAL DECISION AND
ORDER
A representation election was conducted on Sep-
tember 27, 1977, pursuant to a Decision and Direc-
tion of Election by the Acting Regional Director
for Region 5. The tally of ballots furnished the par-
ties after the election showed 148 votes cast for
and 103 against the Union, with I void and 2 chal-
lenged ballots. Respondent filed timely objections
to conduct affecting the results of the election, al-
leging essentially that the Union (1) defaced official
election notices; (2) coerced and restrained employ-
ees and interfered with their free election choice
by threatening violence and retaliation against
those employees who did not support the Union;
(3) made misleading and material misrepresenta-
tions regarding the Union's history of engaging in
strikes and the possibility of future strikes, and re-
garding the financial condition of Respondent,
without affording Respondent sufficient opportuni-
ty to rebut such misrepresentations; and (4) made
misleading and material misrepresentations con-
cerning affiliation of Respondent's employees with
a local union. The Regional Director conducted an
investigation and, on December 2, 1977, issued his
Supplemental Decision and Certification of Repre-
sentative in which he overruled Respondent's ob-
jections and certified the Union. Respondent's re-
quest for review of the Regional Director's Supple-
mental Decision and Certification of Representa-
tive was denied by the Board on December 30,
1977, on the grounds that it raised no substantial
issue warranting review.
Subsequently, by letter dated January 11, 1978,
the Union requested that Respondent meet for pur-
poses of collective bargaining. By letter dated Jan-
uary 20, 1978, Respondent refused to bargain with
the Union on the grounds that the Union was im-
properly certified. Thereafter, the Union initiated
unfair labor practice charges which culminated in
the Board's Decision and Order' wherein the
Board again denied Respondent's request for a
hearing on the matters raised by Respondent's ob-
jections to the aforementioned election. Thus, the
Board viewed Respondent's request as an attempt
to relitigate issues raised and resolved in the under-
lying representation case. The Board therefore
granted the General Counsel's Motion for Sum-
mary Judgment, found that Respondent unlawfully
I The Cambridge Wire Coth Company. Inc., 236 NLRB 132 (1978)
256 NLRB No. 178
refused to bargain in violation of Section 8(a)(5) of
the National Labor Relations Act, and ordered it
to bargain upon request.
On June 9, 1980, the United States Court of Ap-
peals for the Fourth Circuit issued its decision in
this proceeding,2 wherein it denied enforcement of
the Board's Order and remanded the case to the
Board. The court found it unnecessary to address
the merits of Respondent's objections to the elec-
tion, because it found that the Board had failed to
comply with its own regulations. More specifically,
the court adopted the reasoning and holding of the
Sixth Circuit Court of Appeals in Prestolite Wire
Division v. N.L.R.B., 592 F.2d 302 (6th Cir. 1979),
a case involving objections to a consent election
held pursuant to Section 102.62(b) of the Board's
Rules and Regulations. The Regional Director
there rendered his report on objections on the basis
of an administrative investigation of the objections,
rather than on the basis of an evidentary hearing
on the matters raised by the objections. The court
held that, where the Board considers exceptions to
such a report on objections, it is the better practice
for the Regional Director to be responsible for
transmitting to the Board all of the materials con-
sidered by him in reporting on the objections,
rather than simply permitting the excepting party,
pursuant to Section 102.69(g) of the Board's Rules
and Regulations, to append to its exceptions copies
of documents it has timely submitted to the Re-
gional Director and which were not included in
the Regional Director's report on objections. 3
In remanding the case to the Board, the court
herein directed the Regional Director to transmit
to the Board for its review all the materials consid-
ered by him in his Supplemental Decision and Cer-
tification of Representative in Case 5-RC-10138, in
which he overruled Respondent's objections to the
election. Accordingly, we have received and re-
2 .NL. RB . Ihe Cambridge Wire Cloth Compan. Inc. 622 F 2d 1195
14th Cir 1980)
:1 The court in Presiolie emphasized that it was not "expressly ruling
that the Regional Director is in'ariably required under Section 102 9(g)
to transmit to the Board all of the materials considered bh him (although
the language says 'shall')" Rather, as indicated, the court simply opined
that "the better practice is to do so." Subsequently, the Sixth Circuit has
gone further and held that Sec 102.6
9
(g) requires the Board to review all
the dlocumentar evidence relied on by the Regional Director in his dis-
position of objections to an election on the basis of an administrative in-
· estigation; that it is an abuse of the Board's discretion for it to adopt the
report of a regional director ithout reviewing the documentary esi-
dence relied n by the Regional Director; and that the regional director
has the burden of transmitting the record, as defined in the first sentence
of Se 102 6'(g). to the Board fir such revies .NL.R B North Elec-
tric Company. Plant .o. 10, 644 F 2d 5) (th Cir 1981). citing . L. RB.
v Curri. NoVll Corp., 634 2d 1027 (6th Cir 19o()) I'he Fourth Circuit in
the instant proceedtling tound that by failing to btainr fromn the Regional
Director all lif the mliterial considered hb hinm in his dispositio n of the
objectioll to the c ctleci the Board failed t cIipl ith its i n regu-
lation,
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed the entire Regional Office file in the repre-
sentation proceeding and, for the reasons discussed
below, we affirm the Regional Director's overrul-
ing of Respondent's objections and his certification
of representative.
The Objections
Objection No. I
1. Subsequent to the posting by the Employer
of the official election notices from the Nation-
al Labor Relations Board and prior to the date
of the election, the Petitioner, through its
agents, representatives, adherents and others,
in clear contravention of the Board's rules and
violation of its stated prohibition against such
defacement of said notice, defaced official
election notices by affixing Petitioner's emblem
containing the words "Vote Yes!" inside the
sample ballot contained in those official elec-
tion notices. This occurred in two (2) locations
of the plant, including the employee cafeteria
where substantially all eligible voters would
have observed it and in which the election
itself was subsequently held, thereby indicating
to eligible voters that the Board favored a
choice of the Petitioner in the election held on
September 27.
In support of this objection, Respondent submit-
ted the affidavit of its vice president for manufac-
turing, Everett Creighton. Therein, Creighton
stated that he posted the Board's official notices of
election in three locations in the plant-the em-
ployee cafeteria; the break area of the fabrication
department; and the bulletin board area of the wire
cloth department. All three notices were covered
with transparent plexiglass over the area on the
notice in which the Board's sample ballots were re-
produced.
On September 22, 1977,4 the day after the no-
tices were posted, and 5 days before the election,
Robert Creighton, Respondent's production control
manager, observed that the plexiglass covering the
notice in the cafeteria had been affixed with a
union "Vote Yes" sticker. The sticker was red,
white, and blue, approximately 2 inches in diame-
ter, and was affixed on the plexiglass directly over
the "Yes" box on the sample ballot in the notice.
Respondent had the sticker removed immediately.
The same day, Everett Creighton found that an-
other union "Vote Yes" sticker had been affixed to
the plexiglass covering the notice in the break area
of the fabrication department. This sticker was situ-
ated about 1 inch above the "No" box on the
4 All dates hereinafter are 1977 unless specified otherwise
sample ballot. This sticker was also removed imme-
diately.
On September 26, the day before the election,
Everett Creighton observed that a union "Vote
Yes" sticker had again been affixed to the plexig-
lass covering the election notice in the cafeteria,
approximately I inch above, and centered over, the
"Yes" and "No" boxes on the sample ballots; this
sticker was removed immediately.
Creighton averred in his affidavit that the notices
were policed by himself and others periodically to
insure that they were not defaced, and that he took
every reasonable measure to avoid such deface-
ment.
Respondent contends that despite the fact that it
cannot identify the persons who actually placed the
stickers on the notices, the Union is nevertheless
responsible as the notices were defaced with union-
issued campaign emblems. Respondent further con-
tends that the presence of the "Vote Yes" stickers
on the notices gave the employees the impression
that the Government endorsed the Union, thus
giving the Union partisan advantage.
The Union denies knowledge of the alleged
misuse of its compaign stickers. However, it asserts
that the "Vote Yes" stickers as well as other cam-
paign emblems were available to anyone in attend-
ance at any of its numerous meetings held through-
out the campaign.
Thus, part-time Union Organizer Ray Johnson
stated, in his affidavit, that the Union held from 8
to 10 mass meetings during the organizing cam-
paign, and that union brochures and "Vote Yes"
stickers were freely available to all in attendance.
Additionally, according to Johnson, for about 2-
1/2 weeks prior to the election, employees would
visit his motel room almost every day and take
union brochures, pamphlets, and "Vote Yes" stick-
ers which were always available on a table in his
room. These same materials were also available in
the motel room of Union Chief Organizer Charles
Barranco.
Employee Collison stated in his affidavit that, at
the union organizing meetings which he attended
in Chief Organizer Barranco's motel room, atten-
dees were asked to take union stickers and try to
get their coworkers to put them on their cars.
Collison confirms Johnson's statement that union
stickers and other promotional materials were left
out on a table in Barranco's motel room and that
anyone who wanted such materials needed only
come to the room and take them. Collison also
stated that he noticed union stickers placed on em-
ployees' toolboxes, as well as on some forklifts and
other machinery.
CAMBRIDGE WIRE CLO()TH COMPANY, INC. 1137
As the Regional Director noted in his Supple-
mental Decision, the defacement of an election
notice by an agent of either party normally war-
rants setting aside the election. Mademoiselle
Shoppe, Inc., 199 NLRB 983, 984, 990 (1972). How-
ever, the Regional Director correctly found on the
basis of the information available to him that the
placing of the Union's "Vote Yes" stickers on the
plexiglass covering the sample ballot could not be
directly attributed to the Union or any of its
agents. Thus, the Regional Director properly de-
clined to set the election aside on those grounds.5
Moreover, the "Vote Yes" stickers in question
were obviously union materials. Also, they were
affixed to the plexiglass covering over the sample
ballot. Under these circumstances, there could be
no reasonable belief or suspicion among the em-
ployees that the prounion message on the stickers
might have emanated from the Board, and thus
served as an endorsement by the Board of the
Union in the forthcoming election. 6
Accordingly, Respondent's Objection I is over-
ruled.
Objection No. 2
2. Subsequent to the filing of the petition
herein and prior to the election on September
27, 1977, the Petitioner, by and through its
agents, representatives, adherents and otners,
coerced and restrained employees and other-
wise interfered with their right to a free and
fair choice by threats of economic and ether
losses and retaliation if they did not support
and vote for the Union and assure its success
at the polls; and harassed and engaged in abu-
sive conduct toward employees in order to
coerce eligible voters into voting for Petitioner
and to discourage said employees from ex-
pressing their true feelings either to fellow em-
ployees or in the voting booth.
Employee Lowell Moore testified in his affidavit
that on September 26, the day before the election,
he witnessed a conversation between employees
Bob Simmons and John Trice in which Simmons
asked Trice how he was doing to vote in the elec-
tion. When Trice replied that he did not know,
Simmons told Trice that if he did not vote for the
Union, "he would not be able to work at the Com-
s Patsy Bee, Inc., 249 NLRB 976, 986 987 (1980). Keller Dye & Finish-
ing Company, 184 NLRB 524, 525 (1970) The Halsey W Taylor Company.
147 NLRB 16, 19 (1964).
We find no ment in Respondent's contention that the free availability
of union stickers, and the Union's failure to instruct union adherents in
the responsible use of such stickers "was calculated to result in" deface-
ment of the election notices.
s Cf. EDM of Texas, Div. of ChromalloY American Corp., 245 Nl.RH
934 (1979); Mercury Industries. Inc., 238 NLRB 896 (1978)
pany if the Union did not win the election" and
Simmons also told Trice that if Trice did not vote
for the Union, and if the Union nevertheless won,
Trice would "be visited at his home by Union
members who would beat him up." 7
Still, according to Moore, on September 22, 5
days before the election, employee Jeff Robbins
told him that if the Union did not win the election
he (Robbins) would "beat the hell out of' Depart-
ment Foreman William Foxwell. Later that same
day, according to Moore, he observed Robbins and
fellow employee John Burton engaged in what ap-
peared to Moore to be an argument. The next day,
Robbins told Moore that if the Union did not win
the election Robbins would "beat the hell out of
Foxwell and Burton." According to Moore, Rob-
bins' threats were known by "nearly everyone" in
the 25-employee finishing department.
While there is no evidence that Robbins himself
ever conveyed any of these alleged threats directly
to the named individuals, Finishing Department
Foreman William Foxwell stated in his affidavit
that, approximately 3 days before the election,
Moore and other employees in his department in-
formed him that Robbins, a welder, "had let it be
known" that if the Union did not win the election
Robbins would "beat the hell" out of Foxwell and
employees John Burton and Stuart Haring. 8
Burton stated in his affidavit that, about 2-3
weeks before the election, Moore told him that he
had "better watch [himself]" because Robbins had
told Moore that Foxwell, Burton, and Haring
needed a whipping. Burton stated that Robbins
himself never told him he wanted to whip him or
harm him in any way. Burton also stated that he
did not know why Robbins would have made such
a statement, because he and Robbins had never had
any problems or arguments and had gotten along
well in the 3 years they had known each other.
Robbins acted as a union observer at the elec-
tion. In his affidavit, he denied ever telling anyone
that he would beat anyone up if the Union did not
win the election.
Respondent contends that Robbins was an agent
of the Union at the time the alleged threat was
made. In support of this contention, Respondent
avers that Robbins was a member of the Union's
in-plant organizing committee, that he regularly at-
tended union meetings, was very vocal in his sup-
port for the Union, distributed union literature, at-
tended the NLRB preelection hearing with the
7 The Regional Director's investigative file doe. not contain affidavits
from either Simmons or Trice
Necrtheless. no specific cldence was submitted in support of
Moorle's a ssertion that Robbins' threats were known by "nearly everyone"
in the
2
5-employee finishing department
1 38 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and acted as one of the Union's observers
during the election. Respondent further contends
that Robbins was privy to the Union's campaign
strategy.
In ruling on this objection, the Regional Direc-
tor implicitly rejected, arguendo, Robbin's denial of
having made the threats in question. Nevertheless,
the Regional Director overruled this objection on
the grounds that Robbins was not an agent of the
Union, and that the threats, even if made, were not
attributable or imputable to the Union.
In this regard, Robbins stated in his affidavit
that, although he attended most of the Union's or-
ganizing meetings during the 3-month period prior
to the election, he never "formally" joined the
Union's in-plant organizing committee. Robbins
also stated that he never requested employees to
sign union membership cards. He did, however, as
noted above, act as a union observer at the elec-
tion.
Employee James Slacum stated in his affidavits
that he observed Robbins passing out union litera-
ture on only one occasion, about 4 days prior to
the election. However, Slacum did state that on or
about September 21, approximately 6 days prior to
the election, Robbins showed him and two or three
other employees a letter which Robbins said was
from Union Representative Barranco to Respond-
ent's president, inviting the latter to a debate at a
union meeting; Robbins indicated that Evans had
not yet received the letter, but that he soon would.
Employee William Collison stated in his affida-
vits that he and "a number of other employees," in-
cluding Robbins, attended a meeting in Union Rep-
resentative Barranco's motel room in Cambridge.
According to Collison, the employees were told
that the Union needed an "in plant organizing com-
mittee" at the Company. Barranco explained that it
would not be possible for him to gain access to the
plant, but that the in-plant organizing committee
"would be able to speak and act for him." Howev-
er, according to Collison, to his knowledge an in-
plant organizing committee was never actually
formed by the Union. All employees who attended
this and subsequent union organizational meetings
were asked to take and distribute union stickers,
and to try to obtain signed union authorization
cards.
According to Collison, he and Robbins were
among a group of five or six employees who regu-
larly attended these informal organizing meetings
in Barranco's motel room, to which all interested
employees were invited.9 According to one of
9 Collison stated, however, that about 3 weeks before the election he
stopped supporting the Union.
Collison's affidavits, the aforementioned group of
regular attendees were selected by the Union to (1)
distribute union campaign literature, including
cards and union stickers, to their fellow employees;
(2) solicit authorization cards; (3) tell employees
when union organization meetings were scheduled,
and invite employees to attend; (4) call and visit
employees at their homes; (5) design posters in sup-
port of the Union; and (6) generally encourage em-
ployees to vote for the Union. However, according
to Collison's other affidavit, he was not aware that
the Union ever picked a select number of employ-
ees who were to form any kind of in-plant organiz-
ing committee. In this affidavit, Collison explained
that he felt he, Robbins, and the other five or six
particularly strong union supporters referred to
above did do more than other employees during
the campaign. In any event, upon Collison's "infor-
mation and belief" nearly everyone in the plant
looked to him,' ° Robbins, and the other five or six
regular attendees at the union organization meet-
ings as the Union's principal in-plant supporters
and spokesmen. Thus, according to Collison, it was
"common knowledge" in the plant that those inter-
ested in signing cards or hearing the Union's posi-
tion on campaign issues could speak with Collison,
Robbins, or any of the other five or six Union sup-
porters referred to above. Nevertheless, Collison
stated that Barranco asked these strong union sup-
porters to keep him informed of things happening
in the plant, and to encourage employees to attend
union meetings so that he (Barranco) could answer
any questions that they might have.
Union Organizer Ray Johnson stated in his affi-
davit that he was in charge of all volunteer in-plant
organizers. By June-July 1977, approximately 40-
50 employees had signed volunteer organizer cards,
and comprised the Union's in-plant organizing
committee. These employees were not paid for
their activities, which were strictly voluntary, and
to Johnson's knowledge the Respondent was never
made aware of the names of the employees on the
in-plant committee. Johnson does not recall Rob-
bins ever signing a volunter organizer card, al-
though he stated that Robbins did support the
Union during the campaign, and in fact Robbins
and co-employee William Collison volunteered to
be union observers at the election.''
It thus appears from the evidence contained in
the affidavits summarized above that an informal
in-plant organizing committee was formed, which
Robbins himself did not "formally' join. Moreover,
according to Robbins, he never solicited employees
iu Presumably prior to the time he stopped supporting the Union.
" Collison later changed his mind, and did not actually serve as an
observer
CAMBRIDGE WIRE CLOTH COMPANY, INC 1139
to sign authorization cards. He did, however, act as
a union observer at the election. Collison's state-
ments about whether or not the Union specially se-
lected him, Robbins, and five or six other employ-
ees to perform the tasks enumerated above is in-
conclusive.
But given that Robbins was a union election ob-
server, and assuming, arguendo, that Robbins was a
member of the in-plant organizing committee, we
nevertheless find, for the reasons set out below,
that Robbins was not an agent of the Union, and
that therefore his alleged threats are not imputable
to the Union. 12
Employee members of an in-plant organizing
committee are not, simply by virtue of such mem-
bership, agents of their union for the purpose of
making threats or statements. 13 Similarly, service
as a union election observer does not constitute one
an agent of the Union.14 Nor is card solicitation
sufficient to show agency status. 5 Only where the
in-plant organizing committee is itself shown to be
an agent of the union will the conduct of commit-
tee members be imputed to the union. In this case,
it is clear that the in-plant organizing committee
was not an agent of Petitioner.
First, assuming arguendo, as did the Regional Di-
rector, that Robbins actually made the statements
which Moore attributed to him, there is no evi-
dence that the Union either authorized or con-
doned or was even aware of Robbins' statements to
Moore.' 6 (There is no evidence that Robbins him-
self ever conveyed any threats to the named per-
sons.)
As to the agency status of the in-plant organizing
committee, the evidence establishes that it was
without any formal structure and was composed of
any and all interested employees who gave their
support voluntarily and without pay. Moreover,
there were two paid union representatives staying
in a local motel prior to the election, whose pres-
ence and availability were known to the employ-
ees. Under these circumstances, we find that the in-
plant organizing committee was not an agent of the
Union, and that, assuming arguendo, Robbins was a
member of the committee, and that he made the
12 As to Simmons, Respondent does not contend, nor does the e-
dence show, that he was a member of the in-plant organizing committee
or in any other way even arguable acting on behalf of the Union in his
alleged remarks to Trice Respondent merely contends that Simmons was
a "strong Union adherent," described by Moore as being "very outspo-
ken about the Union" We find these to be wholly insufficient esidentiar
grounds upon which to impute Simmons' remarks to the Unllion
la See Beuird-Poulan Dieviion Emeron Electric Company., 247 NLRB
No 180, ALJD, sec. C. 9 (1980), and cases cited therein
14 See Tennessee Plastic. Inc., 215 N.RB 315 319 (1974). Oen (Cor-
ning Fiberglas Corporation. 179 NLRB 219., 223 (1969)
Is See Firestone Steel Products Company, u Diti:ion o Firestone ire and
Rubber Company. 235 N RB 548. 550 (1978)
if Owens-(Corning L'rglal¥ Corp., upra
statements Moore said he did,'7 his comments are
nevertheless not imputable to the Union. L8
As neither Simmons nor Robbins has been
shown to be an agent of the Union, their state-
ments, as attributed to them by Moore, are not im-
putable to the Union. The statements, attributed by
Moore to Robbins and Simmons, as the statements
of individual employees not acting on behalf of any
party to the election, would tend to have less effect
upon voters than they would have had if they been
attributable to either party.'9 Cast in this light, and
in the total absence of evidence of any violence.
we find that the conduct engaged in by Simmons
and Robbins was isolated and not sufficiently sub-
stantial in nature to create a general environment
of fear and reprisal such as to render a free choice
of representative impossible. 20
Thus, Respondent's Objection 2 is overruled.
Objection Nos. 3 and 4
' As noted above. Robbins' testiminy is to the conlrary
1~ See Bauird-Plodan Dviiosn, upra. IFr't,ne S r Producti. upra Seec
also Bujfor-P-elzner Divsion. Inc.. 197 NLRBH 950 (1972). distinguilhilig
International Wood'orker% ol l-Il'rrrta, -11-('IO /Central i'ener. Incorpo-
urtedl, 131 NRB 189 (1961). Itampton M.erchants .4ssociation, e aol. 151
NLRB 1307 (195), and Local 340 Internatiunal Brotherhood crf Operuati'
Potlcri..4FL-CIO (.acombnh Pottery (Compurny). 175 NRB 756 (10h9)
Also compare L.R.B. v George,ton Dres Corporation. 537 F 2d 1239
(4th Cir 1976), denying enforcement uh norm. International Ladies Gar-
ment Worker.' U'nion 4'L -CIO 214 NI RB 706 (1974). wherein the
court found in-planl comnlillitee membher, to be agents of the uni o n, so
that the members' misconduct as attributable to the union under the
principle of apparent aulhoritl Thus, the court there concluded that.
while the cmitittee members did inot act under "express authority" from
the union, the "union [la,] chargeable with the misdeeds under the prin-
ciple of apparent authoriy he colmmittee members in the eyes (of other
employees were the represenatives of a union on the scene and the union
authorized them to occup that poition," 537 F 2d at 1244 In (G;,eore-
toIrn. however, the union had little direct contact with the employees.
dealing predominantly through the in-plant organizing committee as the
on-scene authorized representative of the largely unseen union. But in the
instant case. the presence of the Union in Cambridge. in the person, of its
paid organizers, Barrancto and Johnson, was open, continuous, and
known to and relied oin by the employees themselves. As seen, the Unionl
held 8 10 mass meetings during its organizational campaign. Also, em-
phlyees were free to. and did on a daily basis 'isit either Barranco or
Johnson at their headquarters in the motel in Cambridge were they were
staying during the campaign With the Union itself so prominent. active.
and easily accessible to the employees in the instant case, it is much less
likely than it was in Georgerown that the employees would view and
accept the instant in-plant organizing committee as the on-scene author-
ized representative of the ery isible and accessible Union herein
Indeed it 1, unlikely that the instant employees would consider the i-
planlt organizing committee to he the agent of the Union. when the
Union's strong presence in the area would make any such agency rela
tionship unnecessary In this regard. employee Collison. a particularly
active union adherent during the campaign, testified that t his know l-
edge the Union never actually formed an i-plant rganizing comnmittee
In any event, Barranco specifically instructed Collison and the other fise
or six particularly active union adherents to encourage emplosees
attend the union meetings so that Barranco himself could answer any
questions the employees ight have
"' .Mik Yurov'k d& Sont, 225 NI.RB 148 150 (197h). and cases cited
therein.
20 See. eg.. lennetsee Plauitic. Inc. 215 NLRB 315, 319 (1974) Oni-
(Corning Fibergla Corp.. 179 NLRB 219. 223 (1979) As ntited avre,
there is no eidence hich would een arguably support a finding that
Simmons as acting n behalf of the nion ill his ctmmrnents to rice
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Subsequent to the filing of the petition
herein and prior to the date of the election, the
Petitioner, through its agents, representatives,
adherents and others, made and issued mislead-
ing and material misrepresentations concerning
the record of work stoppages engaged in by
the Petitioner and concerning the financial
condition of the Employer, at a time and
under conditions and circumstances which ef-
fectively denied the Employer an opportunity
to rebut such misrepresentations.
4. Subsequent to the filing of the petition
herein and prior to the election, Petitioner, by
its agents, representatives, adherents and
others, made and issued misleading and materi-
al misrepresentations concerning the existence
of a local union to which employees would os-
tensibly be affiliated, when in fact the Petition-
er herein had no such local union in existence
at that time, and it was stipulated to at the rep-
resentation hearing that any certification that
issued would be in the name of the Interna-
tional and not the local Union.
As the Regional Director noted, the substance of
these objections involves alleged misrepresentations
made by the Union in several leaflets distributed to
unit employees during the week preceding the elec-
tion on September 27. More specifically, Respond-
ent contended in its request for review of the Re-
gional Director's Supplemental Decision and Certi-
fication of Representative that, in a union newslet-
ter distributed on or about September 19, the
Union deliberately and materially misled the em-
ployees by guaranteeing them that they would
never experience a strike following the choice of
the Union in the election, and compounded that
misrepresentation by telling the employees that
they had the unilateral right to choose alternatives
to strikes when in fact any such alternative would
require agreement of all parties, thus removing
from the employees' proper and appropriate con-
sideration the possibility of strikes as a factor in
their overall considerations of how to vote.
The newsletter in question, entitled "YOUR
UNION NEWS," is set out in relevant part as fol-
lows:
STRIKE? NEVER!!
When you vote the United Steelworkers of
America in at CWC, you can be sure the In-
ternational Union Officials in Pittsburgh, Balti-
more or any other place will NOT put you on
strike. First, the International Union does not
have the authority to demand you to strike.
Second, the local union [you and your fellow
workers] must approve or disapprove the
newly negotiated contract before anyone men-
tions strikes. And, third, the International
Union Officers are concerned about preventing
strikes.
Now, if you want to be GUARANTEED
you will never, never have to strike at CWC,
there are several ways to do it and still get the
many benefits you need from your Company.
Here are a few methods to use:
1. COMPULSORY ARBITRATION: After
lengthy negotiations prove to be unsuccess-
ful, the Company and the Union call in an
arbitrator to resolve the issues. Both parties
present their position and the arbitrator can
take parts from both sides and come up with
combined Agreement.
2. FINAL-OFFER SELECTION: Both par-
ties submit a final offer to an arbitrator se-
lected between the Company and the Union.
This impartial arbitrator selects only one
side's offer on its merits. It is the decision
that both parties must accept.
3. NON-STOPPAGE STRIKE: If manage-
ment and labor cannot agree, the employees
stay on the job. A percentage of all the
wages and the Company profits go to com-
munity service causes.
The United Steelworkers of America be-
lieves you have the right to choose which
route you wish to take. YOU will make that
decision after we win the election.
The newsleter went on the label as a "bold lie" an
alleged claim by a "top official" of Respondent
that the employees would have to strike if one of
the other plants represented by the Union went on
strike. Finally, the newsletter stated that the Union
had "positive proof that [union] members are NOT
permitted to conduct sympathy strikes," citing no-
strike provisions in collective-bargaining agree-
ments.
Respondent further contended in its request for
review that, in a union leaflet distributed on or
about September 21, the Union purposefully de-
ceived the employees by referring to a "local
union" to which the employees would belong, and
which they would control, when in fact there is no
local involved in these proceedings, and certifica-
tion would run only to the International.
The leaflet in question is set out in relevant parts
as follows:
CAMBRIDGE WIRE CLOTH COMPANY, INC. 1141
WHO RUNS THE UNION?
... YOU DO!
In the Steelworkers. You and Your Fellow
Employees Run the Union
YOU elect your own local union officers.
YOU run your own local union affairs
YOU elect your own negotiating committee.
YOU make the decision on your own union
contract.
YOU choose your own shop steward.
YOU decide important policies and actions of
your own union by majority vote.
YOU elect your international union officers.
YOU elect your own delegates to the interna-
tional union conventions.
YOU-the membership-are the final voice of
authority and decision in your Steelworkers
Union.
YOU are the Union's real 'boss.'
YOU ARE THE UNION
Finally, Respondent contended that in a subse-
quent issue of "YOUR UNION NEWS," distribut-
ed on or about September 26, the day before the
election, the Union "visciously misrepresented and
distorted Respondent's financial practices by imply-
ing that Respondent's retained earnings went to
Respondent's executives; Respondent asserted in
this regard that "the average voter cannot be ex-
pected to properly evaluate the rather technical fi-
nancial meaning of 'retained earnings!"'
The newsletter in question set out in tabular
fashion what it stated to be Respondent's sales and
retained earnings for each of the years 1973
through 1976; the retained earnings shown in the
tables amounted to approximately $16.6 million
dollars for the 4-year period. Pictured next to the
tabular summary and a narrative discussion thereof
is a cartoon of a man dressed in a business suit and
top hat, sitting atop a pile of money, captioned
"CWC fat cats sit on the money. They pay their
executives but forget the employees."
During the same I-week period prior to the Sep-
tember 27 elections, Respondent also disseminated
campaign literature to its employees.
On September 19, the same day that the Union
issued its allegedly objectionable edition of "Your
Union News" in which Respondent claims the
Union purported to guarantee the employees that
they would never have to strike, Respondent itself
issued a flyer beseeching the employees to "STOP!
. . .THINK!", and alerting them that by voting to
be represented by the Union, "You may be obligat-
ing yourself to a strike [and] to walk a picket line."
On September 22, following the Union's issuance
of its allegedly objectionable material on Septem-
ber 19 and 21, discussed above, Respondent sent a
letter to employees, imploring them, inter alia, not
to make their decision on the basis of union prom-
ises, and not to take a chance on being a partici-
pant in strikes and picket lines.
In a September 23 flyer, Respondent asked the
employees "[not to] trade proven company per-
formance for empty union promises. For . . . no
strikes . . . VOTE NO UNION." In a September
26 flyer, Respondent equated "Union" with, inter
alia, "Possible strikes" and "No Union" with "No
strikes . . . no possibility of interruption of your
income." Once again, the flyer ends with the ex-
hortation "for . . . no strikes . . . VOTE NO
UNION."
Also on September 26, in obvious response to
the Union's above-described September 26 newslet-
ter discussion of retained earnings, Respondent sent
a letter to the employees which states in relevant
part:
"The Company is in excellent short term fi-
nancial condition" according to Your Union
News. WHY? Not because Cambridge Wire
Cloth is sitting on bags of money as their car-
toon depicts, but because the company has re-
invested in the business to expand its inven-
tories, its buildings, its equipment, and its ac-
counts receivable.
The Steelworkers Union calls this reinvest-
ment "retained earnings", as if it were a bad
word. We believe- and every economist will
support us-that investments are absolutely nec-
essary to create jobs.
Later in this letter, Respondent accounted for the
disposition of $3.8 million in retained earnings
during the years 1973-76.
The Regional Director evaluated and overruled
these objections under the rules set out in Shopping
Kart Food Market, Inc., 228 NLRB 1311 (1977),
which at the time of the Regional Director's Sup-
plemental Decision and Certification of Representa-
tive in December 1977 was the prevailing authority
for the analysis of alleged misrepresentations in
election campaigns. Subsequent to the Regional Di-
rector's Supplemental Decision and Certification of
Representative, and during the pendency of this
proceeding before the Fourth Circuit Court of Ap-
peals for enforcement of the Board's bargaining
order in 236 NLRB 1326 (1978), the Board issued
its decision in General Knit of California, Inc., 239
NLRB 619 (1978), in which it overruled Shopping
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kart, supra, and announced its return to the stand-
ard of review for alleged misrepresentations articu-
lated in Hollywood Ceramics Company, Inc., 140
NLRB 221 (1962). Noting this, the court in its
remand directed the Board to examine the allega-
tions of election misrepresentations under the test
enunciated in General Knit and Hollywood Ceramics,
which is as follows:
[A]n election should be set aside only where
there has been a misrepresentation or other
similar campaign trickery, which involves a
substantial departure from the truth, at a time
which prevents the other party or parties from
making an effective reply, so that the misrep-
resentation, whether deliberate or not, may
reasonably be expected to have a significant
impact on the election. However, the mere
fact that a message is inartistically or vaguely
worded and subject to different interpretations
will not suffice to establish such misrepresenta-
tion as would lead us to set the election
aside. 2
Applying that test to the facts of this case, we
note at the very outset that, whatever the merits of
Respondent's contentions as to the inaccuracy or
untruthfulness of the Union's above-described Sep-
tember 19, 21, and 26 leaflets-contentions which
will be discussed infra-Respondent had ample time
to, and did, issue effective replies, as evidenced by its
same day reply to the Union's September 26 leaflet,
the day before the election, and its September 22
and 23 literature dealing with strikes. 2 2
With regard to the newsletter "Your Union
News" distributed on or about September 19, Re-
spondent, as outlined more fully above, contends
that the Union misled the employees by guarantee-
ing that there would be no strikes if the Union
were selected as the bargaining representative, and
by promising the employees that they have the
right to choose alternatives to strikes. But it is clear
from the text of the newsletter set out above that
the passage in question does not give a guarantee
21 140 NLRB at 224.
22 Nor was Respondent otherwise silent during the campaign. Thus,
the Regional Director's file reveals that as early as July 20, 1977, only 5
days after the filing of the representation petition by the Union, Respond-
ent sent a letter to all employees in which it clearly stated its opposition
to the Union's efforts to represent Respondent's employees, and promised
to keep the employees "fully informed of all developments." In a Sep-
tember 6 pamphlet entitled "Our Employees Want to Know," Respond-
ent for the first time advised the employees to "vote No Union For .
No Strikes," a claim it repeated, as seen above, following the Union's al-
leged September 19 guarantee to employees of no strikes if they voted
for the Union. On September 15, in a letter to all employees, Respondent
again alerted the employees to "[A]nother cost of unionization . the
risk of strikes, [with] no wages, no fringe benefits, no unemployment
compensation, picketing, dissension, and sometimes, even violence," and,
in this same letter, advised the employees that the Union had been in-
volved in work stoppages at 306 companies in 1976 extending from 10
days to 16 months' duration, and involving 63,205 employees.
of no strikes, but rather advises the employees that
they will not be called out on strike by the union
leadership as an immediate result of a union victo-
ry. Thus, the newsletter tells the employees first
that the Internaional Union does not have the au-
thority to demand that employees go on strike, and
second that, in any event, the local union, com-
prised of the Cambridge employees, must approve
or disapprove the newly negotiated collective-bar-
gaining agreement "before anyone mentions strikes"
(emphasis supplied). Third, the employees are ad-
vised that the Union is "concerned about prevent-
ing strikes," and are given examples of how that
concern has been manifested in other bargaining
contexts involving the Union. Finally, the newslet-
ter advised the employees of several possible alter-
natives to strikes (i.e., compulsory arbitration, final-
offer selection, and nonstoppage strike) which, if
agreed to between the parties, would provide as-
sured methods by which to avoid strikes altogeth-
er.
In a subsequent portion of this same newsletter,
the Union challenges the accuracy of a statement
allegedly made by an Employer official I week
earlier in which the official is alleged to have told
the employees that they would have to strike if one
of the other plants represented by the Union went
on strike. The newsletter characterized this alleged
statement "a bold lie," challenged the Employer to
show positive proof of the accuracy of its alleged
statements that the Cambridge employees must
have a sympathy strike if another plant represented
by the Union went on strike, and in turn sets out
what the Union characterized as "positive-proof"'
that union members are not permitted to conduct
sympathy strikes.
We find that, contrary to the Employer's asser-
tions, and whatever the factual accuracy of any of
the allegedly objectionable statements contained in
this issue of "Your Union News," they do not rise
to the level of unqualified guarantees that the em-
ployees would never, under any circumstances, ex-
perience a strike if they chose to to be repesented
by the Union, and, in any event, contrary to Re-
spondent's contentions, they do not 'have an over-
powering impact on the inexperienced employees"
and "deceitfully remov[e] from the proper and ap-
propriate consideration by voters the possibility of
strikes as a factor in their consideration of how to
vote," thus "render[ing] impossible a rational deci-
sion by the voters." Moreover, as noted above, Re-
spondent had ample time to respond, and in fact
did disseminate, on September 19, 22, and 23, lit-
erature of its own in which, as seen, it directly
countered what it contends was the Union's objec-
CAMBRIDGE WIRE CLOTH COMPANY, INC. I1143
tionable claim of no strikes if the employees voted
for the Union.
As to the Union's September 21 leaflet entitled
"WHO RUNS THE UNION?" we find no merit in
Respondent's contention that this is "another pur-
poseful deceit perpetrated upon the voters" which
warrants the setting aside of the election. Respond-
ent contends that this pamphlet misleads the em-
ployees because in fact only the International, and
no local, was involved in these proceedings; certifi-
cation, if obtained, would run to the International.
To whatever extent the Union's pamphlet "WHO
RUNS THE UNION" may otherwise have tended
to give an impression that a local was already es-
tablished, we find it unlikely that any such impres-
sion was in fact created, since Respondent itself,
just 2 weeks earlier, in a September 6 pamphlet en-
titled "Our Employees Want To Know," cleary
advised the employees that:
No local union has filed the petition to repre-
sent Wire Cloth employees. If the union
should win it would be the United Steelwork-
ers of America-the international union, which
would be the certified bargaining agent of
Cambridge Wire Cloth employees. No local
unions would be involved, the international of-
ficials of the Steelworkers Union would con-
trol your future.
So, Respondent had already made it quite clear to
the employees that there was no local in existence
at the time of the election, thus substantially reduc-
ing the likelihood that those same employees 2
weeks later would be duped into thinking that a
local was involved in these proceedings. Moreover,
as seen, the pamphlet "WHO RUNS THE
UNION?" does not refer to an existing local, but
instead merely implies that a local would be estab-
lished, and that, upon such establishment, there
would be an election of local union officers and a
negotiating team; decisionmaking as to a collective-
bargaining agreement; and selection of shop stew-
ards--all of which matters the employees were as-
sured by the pamphlets that they would be partici-
pating in. Cast in this light, there is even less likeli-
hood that the employees would be somehow de-
ceived into believing that a local union was already
in existence.
Finally, in this regard, Respondent has failed to
show how any possible confusion on the part of
the employees as to the existence of a local union
amounts to a:
misrepresentation . . . which involved a sub-
stantial departure from the truth, at a time
which prevents the other party . . . from
making an effective reply, so that the misrep-
resentation . . . may reasonably be expected to
have a significant impact on the elction.2 3
Lastly, we find nothing in the Union's September
26 issue of "Your Union News" which even argu-
ably approaches the type of "misrepresentation or
other similar campaign trickery" which would re-
quire the setting aside of an election under the Ho.'-
lywood Ceramics standard enunciated above. Re-
spondent's contention that the article in question
purports to indicate that corporate retained earn-
ings end up in the pockets of corporate executives
is belied by the text of the article itself which
clearly states that an:
"Increase in Retained Earnings unsually reflect
[sic] Net Profits remaining after the payment
of Dividends, if any, to stockholders. The
Company showed increases in Retained Earn-
ings [in 1974-76]. As you can see, the Compa-
ny is making a sizeable profit."
Morever, any untoward implications which
might arguably be gleaned from the article in ques-
tion were quite effectively countered by Respond-
ent's own response of the same date, in its Septem-
ber 26 letter to employees excerpted in relevant
part above.
In light of all the above, we do not find the
Union's conduct referred to in Respondent's Objec-
tions 3 and 4 to be of the type warranting the set-
ting aside of an election under the standard for
such a step set out in Hollywood Ceramics, supra.2 4
Therefore, Respondent's Objections 3 and 4 are
overruled.
Objection No. 5
5. By the foregoing and by the other acts and
conduct, Petitioner, through its agents, repre-
sentatives, adherents and others, interfered
with, restrained, and coerced eligible voters in
the exercise of their rights under the Act and
destroyed the requisite laboratory conditions
necessary for the voters to make a free, fair
and reasoned choice in the election conducted
herein.
Respondent presented no evidence in support of
this objection, not previously considered in the
foregoing objections. Accordingly, Objection 5 is
overruled.
Having confirmed the validity of the election in
Case 5-RC-10138, we hereby affirm the Certifica-
2:, l iv.1vw d (erun,,, upra, 141 NlRB at 224
24 tecause Member Zinnrerman finds the conduct alleged in Objec-
lions. 3 and 4 o he unolhiectionable tinder (;e nral KAt. supra. he finds it
unnecesars to deternmine herthcr he v.uld adhere it the principles
enunciated in that deis l in ;a clase where ils applicatl tl ouldd result In
selting the clecliron aside
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Representative issued therein, and we
hereby affirm our Order in Case 5-CA-9173.2 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
2 236 NLRH 1326 (1978)
lations Board affirms its Decision and Order issued
in this proceeding on June 30, 1978 (reported at
236 NLRB 1326), and hereby orders that the Re-
spondent, The Cambridge Wire Cloth Company,
Inc., Cambridge, Maryland, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
therein.