AWB Metal, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1992

306 N.L.R.B. 109 (N.L.R.B. 1992)

109
306 NLRB No. 18
AWB METAL
1 Midland National Life Insurance Co., 263 NLRB 127 (1982).
2 The term ‘‘misrepresentation’’ as used herein, means a substan-
tial departure from the truth, such that it may reasonably be expected
to have an impact on the election.
AWB Metal, Inc. Division of Magnode Corp. and
United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW,
Petitioner. Case 25–RC–9033
January 22, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 7, 1991, and the Regional Director’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 44 for, and 18
against, the Petitioner, with 1 challenged ballot, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the Regional Direc-
tor’s findings and recommendations, and finds that a
certification of representative should be issued.
Contrary to our dissenting colleague, we would not
create an exception to Midland National Life Insurance
Co., 263 NLRB 127 (1982), which would prohibit mis-
representations disseminated within 24 hours of an
election. In Midland, the Board returned to a policy
that had been in effect during the first 20 years of the
Act. Under that policy the Board does not inquire into
the truth or falsity of campaign material and does not
set aside elections on the basis of misleading campaign
statements. The only exception to this rule specified by
the Board was that it would set aside an election where
a party has used forged documents which render voters
unable to recognize propaganda for what it is. Id. at
133. Since its announcement 9 years ago, the Midland
rule has proven to be, as predicted, ‘‘a clear, realistic
rule of easy application which lends itself to definite,
predictable, and speedy results.’’ Thus, we find no rea-
son to tamper with the rule and get back into the busi-
ness of deciding whether statements alleged as mis-
representations are in fact ‘‘substantial departures from
the truth,’’ and, if so, are such that they could ‘‘rea-
sonably be expected to have a significant impact on
the election.’’ Hollywood Ceramics Co., 140 NLRB
221, 224 (1962). If we were once again to entertain
such objections, the universe of cases presented would
undoubtedly include not only misrepresentations that
easily meet such a test but also misrepresentations that
(after time-consuming proceedings) are shown to fall
short and others that require difficult and delicate line-
drawing.
Accordingly, because we agree with the Regional
Director that the leaflet distributed by the Petitioner
did not involve forgery but was, at most, a misrepre-
sentation of the Employer’s wage rates at its unionized
plant, we shall, applying Midland, overrule the Em-
ployer’s objections and issue a certification of rep-
resentative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
and that it is the exclusive collective-bargaining rep-
resentative of the employees in the following appro-
priate unit:
All production and maintenance employees, in-
cluding warehouse employees, truck drivers, and
group leaders, employed at the Employer’s Indi-
anapolis, Indiana facilities located at 4151 W.
Washington Street and 90 S. Tibbs; BUT EX-
CLUDING all office-clerical and professional em-
ployees, all draftsmen, all guards and watchmen,
all temporary employees, and all supervisors as
defined in the Act.
MEMBER RAUDABAUGH, dissenting.
My colleagues conclude, in agreement with the Re-
gional Director, that the Petitioner’s election-eve dis-
tribution of campaign propaganda overstating the start-
ing wages of employees at the Employer’s unionized
facility in another State does not warrant setting the in-
stant election aside under the Midland1 rule. While I
agree generally with the holding in that case that elec-
tions are not to be set aside on the basis of misleading
campaign statements, I would not apply it to a situa-
tion where the misrepresentation occurs within 24
hours of the opening of the polls.2 Applying this rule
to the instant case, I would invalidate the election and
direct a second election.
It is undisputed that less than 24 hours prior to the
election, the Petitioner circulated a handbill containing
misrepresentations with respect to contractual wage
rates recently negotiated between Machinists Local
Lodge 1312 and the Employer at its plant in Trenton,
Ohio. The handbill directed the employees’ attention to
the attached pages of the contract, which listed the
starting wages for all job classifications in the two-
tiered wage system and invited them to compare the
‘‘amazing superior level and difference in . . . wages
provided at the . . . Ohio plant and your plant at Indi-
anapolis.’’ The Petitioner, however, omitted a page
from the contract containing a critical footnote explain-
ing that the starting wages for most of the lower tiered
employees were actually 30 percent lower than the
wages listed and would not reach the enumerated
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hollywood Ceramics Co., 140 NLRB 221 (1962).
4 The Board has had considerable success in the implementation of
the 24-hour rule of Peerless Plywood Co., 107 NLRB 427, 429
(1953) (no captive-audience speeches within 24 hours of an elec-
tion). The rule is seldom broken. See Samoff, NLRB Election: Un-
certainty and Certainty, 117 U. Pa. L. Rev. 228, 248 (1968).
5 Bok, The Regulation of Campaign Tactics in Representation
Elections Under the National Labor Relations Act, 78 Harv. L. Rev.
38, 84 (1964).
6 Ibid.
7 Ibid.
8 I stress that my proposed rule would prohibit last-minute mis-
representations by both unions and employers alike.
amount until after 5 years of employment with the Em-
ployer. The Regional Director concluded that this mis-
representation did not involve the use of forged docu-
ments—the only ground for setting an election aside
under Midland. Thus, he recommended overruling the
Employer’s objections and certifying the Petitioner.
Like the majority, I have no desire to return to the
era of Hollywood Ceramics3 when the Board routinely
scrutinized and analyzed preelection campaign state-
ments if there was a claim that they included
misstatements of fact warranting invalidation of an
election. The premise underlying Hollywood Ceramics
was that Board intervention was necessary to protect
employees from their presumed inability to filter out
exaggerations or misrepresentations. I agree with the
view that employees are intelligent enough to assess
the statements of all sides in an organizational cam-
paign. However, this view is valid only if the employ-
ees have had the opportunity to assess the statements
of both sides. If one side makes a misrepresentation in
circumstances where there is no opportunity to reply,
the employees never get to hear the other side. They
will then go to the polls with the misrepresentation
fresh in their minds and with no effective response to
it. In such circumstances, I would not permit the of-
fending party to reap the electoral fruits of the mis-
conduct.
I wish to emphasize that my approach does not re-
turn to the days of Hollywood Ceramics. If the alleged
misrepresentation occurs more than 24 hours before
the election, the Board need not deal with it. Similarly,
the 24-hour rule would not leave ambiguous the issue
of whether there was an adequate opportunity to re-
spond. If the statement was made before the 24-hour
period, I would hold, as a matter of law, that there was
an adequate opportunity to respond. If it was made
thereafter, I would hold, as a matter of law, that there
was no such opportunity.4
In addition, my approach is consistent with, and in-
deed is an essential part of, the goal of deregulating
the content of campaign material. As Professor Bok
has explained, the deregulation of the content of
speech can be attained to the degree that we maximize
the opportunity to respond to that speech.5 He wrote
that ‘‘as the opportunity to reply is enhanced, the need
for regulating the content of speech tends to dimin-
ish.’’6 Similarly, ‘‘an adequate opportunity to reply
will go far to remove the need for expanding controls
over the content of speech.’’7
In sum, a rule prohibiting the dissemination of writ-
ten misrepresentations during the 24-hour period be-
fore an election will ensure that the contest for the
votes of employees will be a fair one and will help fa-
cilitate a rational choice by employees for or against
union representation. In addition such a rule does not
suffer from the over-regulation of Hollywood Ceram-
ics.
Applying this rule to the facts of this case, I would
find that the Petitioner’s misrepresentation of the con-
tractual wage rates of certain of the Employer’s union-
ized work force, which was admittedly circulated in a
leaflet during the 24 hours before the election, con-
stituted objectionable conduct warranting the setting
aside of the election and the direction of a second elec-
tion.8