Gulton Industries-Femco Division

National Labor Relations Board - Board Decisions

Feb 5, 1979

240 N.L.R.B. 546 (N.L.R.B. 1979)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulton Industries-Femco Division and Chauffeurs,
Teamsters and Helpers Local Union No. 391, affili-
ated with International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner. Case II RC 4386
February 5. 1979
DECISION ON REVIEW. ORDER. AND
DIRECTION OF THIRD EL.ECTION
BY MEMBERS JNKINS. Mt RPIY. ANI) TR I SD)\ I
On March 31. 1978. the Regional Director for Re-
gion II issued a Third Supplemental Decision and
Direction of Third Election in which he sustained
one of the Employer's six objections to the election
held on February 16, 1978, pursuant to a Second
Supplemental Decision, Order Severing Cases.' and
Direction of Second Election.2 Thereafter, in accor-
dance with Section 102.67 of the National Labor Re-
lations Board Rules and Regulations. Series 8. as
amended, the Petitioner filed a timely request for re-
view 3 of the Regional Director's decision on the
grounds that it does not reflect Board precedent. The
Employer filed a statement in opposition to the Peti-
tioner's request for review.
The National Labor Relations Board, by tele-
graphic order dated May 3, 1978, granted the Peti-
tioner's request for review, and the Employer there-
after filed a brief on review.
Pursuant to the provisions of Section 3(bh) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
cast with respect to the issues under review, includ-
ing the Petitioner's request for review, the brief in
support thereof, and the Employer's brief on review.
and makes the following findings.
In agreement with the Regional Director 4 we find
merit in the Employer's Objection 5. This objection
alleges, in substance, that the Petitioner undermined
the Board's neutrality in the second election when. in
a series of preelection leaflets distributed to unit em-
ployees, it mischaracterized a settlement agreement
The Acting Regional D)irector ordered Iha (ase, I I (' 75 II (
7167 and II ('A 7097 he severed from ('Cae II R 4386(
The tall) of balilots showed that of approxinaltel 149 eliihble orll 74
cast ballots for and 62 against the Petitioler. 'Ihere were lie challciccd
ballots cast, an insufficient number to affect the outCOmIe of the clectliii
Although the Petitioner entitled its request Petitioner' I cceptils to
Third Supplemental DeclsNon and Direction oif Ihird Electiion." we vail.
contrary to the urging of the mploer. Ireat the documenlt filed h the
Petitioner as a request for review
4 The relevant portions of the I hird Sapplerinial I)ecti6,ll ailId D)lrecit n
of Third lection are attached hereto as an Appendix.
240 NLRB No. 73
approved by the Regional Director in Case I I-CA
7097 and thereby misled employees into believing
that the Board had found the Employer guilty of un-
fair labor practices.
The Regional Director, relying on our decision in
Fobrlco. Inc., 5 found objectionable a leaflet distrib-
uted by the Petitioner on February 10, 1978. which
stated. iter alia. that a statement made by the Em-
ployer "not only was . . . a lie, but it was also illegal.
They've li.e., the Employer] even had to post a notice
on the bulletin board . . . stating that they won't
threaten us with a loss of benefits to discourage our
interest in Union representation.... Gulton's the
only one that's broken the law in this campaign."
Ihe Regional Director noted that in two leaflets sub-
sequently distributed (on February 14 and 15) the
Petitioner included statements which indicate that a
second election had been scheduled because the Em-
ployer had "ignored your rights and committed seri-
ous violations of the National Labor Relations Act"
and "because of all the unfair labor practices com-
mitted by" the Employer. The Regional Director
concluded that the leaflets show that the settlement
agreement and the Union's mischaracterization of it
played an important part in the Union's campaign.
Quoting the Board's language in Formco, supra, the
Regional Director found that "t]he Petitioner's mis-
statements were reasonably calculated to mislead
employees into believing that the Board had judged
the Employer to have committed unfair labor prac-
tices whereas, in truth, such practices were never
proven." Accordingly. the Regional Director ordered
that the election conducted on February 16, 1978, be
set aside and directed that a third election be held.
We agree with the Regional Director that the Peti-
tioner has engaged in conduct which has comprom-
ised the Board's neutrality and warrants setting aside
the election.
Our dissenting colleague would distinguish the in-
stant case from Fornmco, Inc., supra, on the basis that
the Union's statement that the Employer violated the
law is not the equivalent of a statement that the
Board has found that the Employer violated the Act.
Yet in bforntco the Petitioner did not state that "the
Board" had found the Employer guilty of engaging
in unfair labor practices but rather that "Manage-
ment was found guilty of engaging in unfair labor
practices." Similarly. here, the Petitioner did not
state that "the Board" had found the Employer guil-
ts of unfair labor practices but rather that "[tjhey
have ignored your legal rights and committed serious
233 NI RB ( 11977) 1 n Iin ,,, the Board found objectionable a
11111's letter toi emplies, mailed subsequent to the executioin of a selttle-
lrelit greellenl. which stated, Ajs \iiu kntow b nlv. management was
found ill of clgaging in unfaiir labor pratlices and uas oirdered to post a
O ds IlotlCe"
GULTON IN[)USTRIES 547
violations of the National Labor Relations Act which
is why we're even having another election." Just as
the Board alone was deemed capable of adjudicating
unfair labor practices in Formnco, so too it is the
Board alone which is empowered to direct a second
election. Thus, contrary to our dissenting colleague,
we find Petitioner's mischaracterization of the settle-
ment agreement herein impermissibly implicated the
Board in its partisan election campaign.
Nor are we willing, as is our dissenting colleague.
to engage in speculation as to how the Union could
have permissibly conveyed its messages. The lan-
guage which our colleague posits is simply not the
case before us. The Union here did not couch its
statements in a manner which made clear to employ-
ees that it was only the Union claiming unlawful coln-
duct, rather than that a violation had actually been
found, and the campaign materials found objectiona-
ble contain no indication upon their face that it is a
settlement agreement to which the statements refer.
Finally, we cannot agree with our colleague's posi-
tion that the Union's statement that the Employer
"had to" post a notice is not objectionable because it
was actually required to do so under the terms of the
applicable settlement agreement. The overall tenor of
the Union's statements was such as to lead the em-
ployees to conclude that a violation had been found
by this Agency and that the Employer was therefore
required to post a notice as a means of remedying
such violation. It is within that context that we must
adjudge the nature of the Union's statements. Ac-
cordingly, we agree with the Regional Director that
the February 16. 1978, election should be set aside
and a third election conducted.
Accordingly, we hereby sustain Objection 5. and
we shall set aside the election and order that a new
one be held.
ORDER
It is hereby ordered that the election hereinbefore
held be, and it hereby is, set aside.
[Direction of Third Election and E'xccl.iowr foot-
note omitted from publication.]
MEMBER TR I SiAI i. dissenting:
In disagreement with the majority. I would not
find that leaflets distributed bh the Union shortl\ he-
fore the second election in this case imperinisibl,
characterized the settlement agreement. and I would
therefore reverse the Regional Director and certif\
the Union as the collective-bargaining representative
in the unit found appropriate.
The leaflet distributed by the U nion on ebrularN
10 stated, inter alia:
I know now that not only was this statement a
lie, but it was also illegal. They've even had to
post a notice . . . stating that they won't threat-
en us with a loss of benefits....
(julton's the only one that's broken the law in
this campaign.
The leaflet distributed on February 14 stated, in
part:
They have ignored your legal rights and com-
mitted serious violations of the National Labor
Relations Act which is why we're even having
another election.
Finall). the leaflet distributed on February 15
stlates in part:
The reason we are even having another election
is because of all of the unfair labor practices
committed by the company.
The majority characterizes the leaflets as intimat-
ing that the Board had found the Employer guilty of
various unfair labor practices. and therefore finds
that the distribution of the leaflets compromised the
Board's neutrality and misled employees. The basis
for this decision is Frmco, In.. 233 NLRB 61
(1977). in which a union leaflet stated that the em-
ployer had been "found" guilty of various violations
when, in fact, there had been a settlement agreement
containing a nonadmissions clause concerning the al-
leged violations. I find that case inapplicable to the
present facts.
In my view, the Union's statement that the Em-
ployer violated the law is not the equivalent of a
statement that the Employer has been found guilty of
violating the Act. Previous leaflets distributed b the
Union had discussed the charges, informed employ-
ees that the Union still believed that the Employer
had violated the law, and asserted that the Union
had settled the charges only to minimize delay and
give employees another opportunity to vote. The set-
tlement agreement did not require that the Employer
cease proclaiming its innocence, noi did it require
that the Ulnion cease proclaiming that the Employer
had violated the Act. I do not believe that my col-
leagues would have found the leaflets objectionable
had the leaflets stated:
D[espite our assent to the settlement areemenit.
we still believe that (I) not only was this state-
ment a lie, but it was also illegal: (2) (Gulton's
the only one that's broken the law: and (3) thc\
have committed serious violations of the N LRA.
Moreover. I believe that a fair reading of the leaflets.
in context, would lead a reasonable reader to coln-
clude that this was what the U nion was sa,1in not.
GULTON IN[)USTRIES
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the majority here finds, that the Union meant to
preface each statement with "The Board found that
.... " Indeed, my conclusion is buttressed by the
fact that two of the three leaflets which were found
objectionable by the Regional Director mention nei-
ther the Board nor the Act.
I also would not find it objectionable to state, as
the union leaflets did, that the Employer "had to"
post a notice. The only possible objection to this
statement is that the leaflet did not explain why the
Employer "had to" post a notice; it is beyond dispute
that the Employer was, in fact, required to post a
notice under the terms of the settlement agreement.
Similarly, in the context of the leaflets previously dis-
tributed concerning the settlement agreement and
the Union's reasons for agreeing to have another
election, I would not find it objectionable to state, as
the union leaflets did, that actions which the Union
believed to be unlawful were the reason for having
another election. I would not require a fully detailed
procedural description of the settlement agreement,
drafted with the elegance of a Board decision, when-
ever the Union referred to its continuing belief that
the Employer violated the Act.
In view of the foregoing, I would reverse the Re-
gional Director and certify the Petitioner.
APPENDIX
OBJECTION 5.
The Employer contends that Petitioner, in a series
of leaflets, mischaracterized a Settlement Agreement
and misled employees into believing that the Em-
ployer had commited unfair labor practices when in
fact such practices were never proven and thereby
destroyed the neutrality of the Board. In support
thereof, the Employer submitted six of the
Petitioner's campaign leaflets (attached as Appendic-
es B through G).
In order to properly evaluate these leaflets, it is
necessary to understand the disposition of certain
unfair labor practice cases during the period between
elections-August 25, 1977, to February 16.
On August 31, 1977, a Settlement Agreement exe-
cuted by Petitioner and the Employer on August 16,
and 29, 1977, respectively, involving Case No. II-
CA-7085 was approved by the undersigned. The Set-
tlement Agreement contained a non-admission
clause.
On September 1, 1977, the Petitioner filed its
charge in connection with Case No. I -CA-7167. On
October 14, 1977, the undersigned issued a complaint
with respect to Cases Nos. I -CA-7085 and I 1-CA-
7167. That complaint set aside the above-mentioned
Settlement Agreement in Case No. I -CA-7085. The
complaint alleged numerous violations of Section
8(a)(l) and (3) and sought a bargaining order as a
remedy.
On November 29, 1977, the undersigned issued a
complaint in Case No. I 1-CA-7097 which alleged
other violations of Section 8(a)(3) on the part of the
Employer.
On January 11, the parties entered into a Settle-
ment Agreement remedying the violations alleged in
the complaint. The Settlement Agreement was ap-
proved by the undersigned on January 16. The Set-
tlement Agreement contains a nonadmission clause.
On January II, the Petitioner and Employer en-
tered into a Stipulation agreeing to a second election
on February 16.
On about October 19, 1977, the Union distributed
a leaflet to employees entitled, "NLRB ISSUES A
COMPLAINT AGAINST GULTON AND SEEKS
A BARGAINING ORDER-HEARING DATE IS
SET FOR DEC. 20TH." "
This leaflet reads in part:
As a result of this investigation, the Labor Board
has issued a complaint against Gulton and is
seeking a bargaining order.
The Labor Board only seeks a bargaining order
in the most serious cases-only when a
company's conduct is so severe and unlawful as
to undermine employees' rights to organize and
make a fair election impossible. The National
Labor Relations Board, in its investigation, has
found that the Company has interfered with and
is still interfering with the rights guaranteed to
you by Section 7 of the National Labor Rela-
tions Act by the following acts and conduct.
The leaflet then quotes 13 allegations from the
complaint.
The leaflet then goes on to describe the conduct
cited in the complaint as being serious violations and
illegal.
The leaflet continues:
The statements have been found to be illegal
and untrue ....
The N.L.R.B. has found enough evidence to in-
dicate that the Company is guilty of the charges
filed. Because of the massive illegal behavior on
the part of the Company, the Labor Board
maintains that the election results are not valid.
Employees voted no because they believed the
Company's illegal lies, threats and promises.
Therefore, the N.L.R.B. is seeking a bargaining
order. It is very unusual for the Board to seek a
l This leaflet is attached a. \ppendix B.
GULTON INDUSTRIES 549
bargaining order. Just because a Union asks for
one does not mean the Labor Board seeks one.
It is only because the N.L.R.B. has already
found the Company guilty of very serious and
numerous charges in their investigation, that
they are going after a bargaining order.
The N.L.R.B. has set a hearing for December
20th. At the hearing it is the National Labor Rela-
tions Board who presents the case against Gulton.
The Labor Board will trr Gulton for their viola-
tions. If the Labor Board is successful, which we
are certain they will be, the N.L.R.B. will certify
Teamsters Local 391 to act as your bargaining
representative just as if we won the election. The
N.L.R.B. maintains that before the Company
started to interfere with your rights by their ille-
gal behavior, the majority of you had selected
Teamsters Local 391 to act as your collective
bargaining agent to represent you in negotia-
tions for higher wages, better benefits, and im-
proved working conditions.
The Employer cites Formco, Inc.,1 2 as its authority
in overturning the election on the basis of the above
leaflet.
In Formco the union had issued a letter with the
following language: "as you know by now, manage-
ment was found guilty of engaging in unfair labor
practices and was ordered to post a 60-day Notice."
In Formco the Board cited Dubie-Clark Co., Inc.' as
being dispositive of the objectionable nature of the
above statement. It appears to the undersigned that
the instant case is distinguishable from both Duhie-
Clark and Formco. In both cases, the statements
made by the Union dealt with mischaracterizations
of Settlement Agreements. In the instant case no Set-
tlement Agreement was outstanding and the alleged
misstatements dealt with a complaint.
The undersigned finds the leaflet in question here
to be more alligned [sic] with Exhibit B in Monmouth
Medical Center,'4and is of the opinion that that case
is dispositive of the issues herein. Accordingly. I am
not of the opinion that the leaflet discussed above
warrants setting aside the election.
On approximately January 23, the Petitioner circu-
lated the leaflet attached as Appendix C. This leaflet
was distributed after approval of the Settlement
Agreement on January 16, and after a new election
had been agreed to between the parties.
The leaflet is entitled "Bargaining Order vs Elec-
tion-Why a Settlement?"
In this leaflet the Union again characterized cer-
233 NLRB 61.
13 209 NRB 217
"4234 N LRB 328
tain conduct as set forth in the earlier complaint as
being illegal.
The leaflet reads in part. "The National Labor Re-
lations Board, after a preliminary investigation.
thought the charges so important that they never cer-
tified the election results and were seeking a bargain-
ing order. The bargaining order could have taken up
to two years if the Company kept on appealing the
decision."
The leaflet also quotes a portion of the Settlement
Agreement but states that the Employer had
"agreed" to keep it posted for 60 days.
The leaflet ends with a discussion of the Settle-
ment Agreement and the Union's opinion that it was
a complete victory. The leaflet does not indicate at
any point that the Employer had been found guilty
or had been forced to post a notice.
The Employer submitted a leaflet attached as Ap-
pendix D which was distributed by the Union on
February 10. The leaflet is signed by an employee
and was one of a series distributed by the Union
purporting to show the feelings of various employees
who had switched their allegiance to the Union.
The leaflet reads in part:
They really had me believing the garbage about
losing all of our benefits. I know now that not
only was this statement a lie, but it was also ille-
gal. They've even had to post a notice on the
bulletin board this time stating that they won't
threaten us with a loss of benefits to discourage
our interest in Union representation....
I'm tired of hearing about the mafia, corruption.
etc. Gulton's the only one that's broken the law
in this campaign.
In the opinion of the undersigned this leaflet clear-
ly mischaracterizes the Settlement Agreement of Jan-
uary 16, by indicating that the Employer had been
forced to post the Notice to Employees. The leaflet
indicates that the Board was punishing the Employer
for its "illegal" conduct by forcing it to post the No-
tice. In accordance with the Board's decision in
Formco I would set the election aside on the basis of
this leaflet.
The Employer submitted the leaflet attached as
Appendix E which was distributed by the Union on
February 13. After a careful reading of this leaflet it
appears that there is nothing objectionable about it
sty'nding alone.
Attached as Appendix F is the Union leaflet dis-
tributed February 14. This leaflet contains the lan-
guage in part, "They have ignored your legal rights
and committed serious violations of the National La-
bor Relations Act which is why we're even having
another election."
GULTON DUSTRIES 49
55(1 )t('lISIONS OF NA IONAL I.ABOR Rtl.Al'IONS BOARD
Attached as Appendix (; is a Ieaflet distributedl l b
the Union on I ebruar 15. I he leaflet reads In paIrt.
'[''he reason we are Cvcn hav,;illi, another election is
hecause of all of the unfair labor priactices colillitled
hy the cornpan."
Ihc [Inion nlaiiiitains that at allI its mrectilinS fol-
lowing the Settlement Agreement it made ;a point of
telling emploNees that the I mnplover had nt bhen
found guilt ' and the onhl wa; it could be found ulil-
ty is if it went through the process ,)f a trial. Ilowver
correct the above might he. that is not the mnessage
conveed i the leaflets. he inion admits that not
all emploCees attended its meetings.
It is clear from the leaflets discussed above that the
Settlement Agreement and the Union's mischaracter-
i/ations of it played an important part in the Union's
campaign. It appears to the undersigned that tile
Boa rd's language in ir'. 'url', applies in the in-
stant case: " he Petitioner's misstatements were rea-
sonablNh calculated to mislead employees into believ-
ing that the Board had judged the Employer to have
commllitted unfair labor practices, whereas, in truth.
such practices were never proven." Accordingly. the
unde(rsnclled finds that Employer's Objection 5 war-
rants settinl aside the election.