Robbins & Myers, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1979

241 N.L.R.B. 102 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robbins & Myers, Inc. and United Steelworkers of
America, AFL-CIO-CLC. Case 9-CA-10296
March 16, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On October 21, 1976, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tiled proceeding in which it found that Respondent
has engaged in and was engaging in certain unfair
labor practices in violation of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended, and ordered Respondent to
cease and desist therefrom, and to take certain affir-
mative action to remedy such unfair labor practices.'
Respondent thereupon petitioned the United States
Court of Appeals for the Sixth Circuit to review the
order of the Board, contending that the Board's order
should be set aside upon the ground that the order is
based on an invalid certification. Respondent argued
that the Board had improperly sustained the Union's
objections to the second election in which the major-
ity of the employees had voted against union repre-
sentation, had improperly overruled Respondent's
objections to the third election, and, thus, had im-
properly certified the Union. The Board filed a cross-
application for enforcement of its Order. On June 20,
1978, the court issued its decision2 in which it re-
226 NLRB 544. Respondent's defense to the unfair labor practice allega-
tion was that the United Steelworkers of America, AFL CIO CLC, herein
the Union, had not been properly certified as the bargaining representative
and, thus, Respondent had no duty to bargain with it. The Board granted the
General Counsel's Motion for Summary Judgment on the ground that Re-
spondent's defense only raised issues that had already been litigated and
resolved in the underlying representation case.
The following is a brief summary of the proceedings in the underlying
representation case. See 266 NLRB at 544 545 for a more complete discus-
sion. The underlying representation case was initiated by the Union when it
filed a petition with the Board seeking to represent the production and main-
tenance employees at Respondent's Gallipolis, Ohio, plant. Three represen-
tation elections were held. On February 21, 1974, in the first election, a
majority of the employees voting cast their ballots for the Union. On October
29, 1974, the Board issued a decision adopting the Hearing Officer's report
which recommended that one of Respondent's objections be sustained and
that a second election be directed. On November 27, 1974, a second election
was held and a majority of the employees voting cast their ballots against
representation by the Union. On June 20, 1975, the Board issued a decision
adopting in part the Regional Director's findings and recommendations with
regard to the Union's objections, and directed a third election. On September
25, 1975, a third election was held and the Union received a majority of the
votes cast. On April 6, 1976, the Board issued its Decision and Certification
of Representative in which it adopted the Regional Director's findings and
recommendations that Respondent's objections be overruled and the Union
be certified as the exclusive collective-bargaining representative.
On May 5, 1976, the Union filed a charge alleging that Respondent had
violated Sec. 8(aK1) and (5) of the Act by refusing to bargain with the Union
and, on June 3, 1976, the General Counsel issued the complaint in this
proceeding alleging the same.
2 Robbins & Myers, Inc. v. N.L.R.B. 577 F.2d 382 (6th Cir. 1978).
versed the Board's finding that certain of the Union's
objections to conduct affecting the results of the sec-
ond election warranted setting aside the election and
remanded the case to the Board for consideration of
the remaining objections to the second election which
the Board had found unnecessary to decide in the first
instance.
On August 29, 1978, the Board advised the parties
that it had decided to accept the remand and that
they might submit statements of position with respect
to the issues raised by the remand. Thereafter, Re-
spondent filed a statement of position.
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 au-
thority in this proceeding to a three-member panel.
On remand, the sole issue before us is whether in
light of the court's decision the second election was
properly set aside. The Union filed five objections to
conduct affecting the results of the second election.
The Regional Director in his Report on Objections to
Second Election and Recommendations to the Board
recommended that portions of the Union's first, third,
and fifth objections should be sustained, that the sec-
ond election should be set aside, and that a third elec-
tion should be directed. The Board adopted the Re-
gional Director's recommendation that a new election
be directed, but a majority of the panel found it un-
necessary to consider the issues raised by the Union's
Objection 5 since the conduct embraced by Objection
13 was sufficiently serious to warrant setting aside the
election. As stated above, the court disagreed with
this finding of the Board. Accordingly, on remand
only Objection 5 remains before us for consideration.
In his investigation of the Union's Objection 5, the
Regional Director examined the contents of a speech
which Respondent's president, Hennessey, made to
different groups of employees the day before the elec-
tion, on company property, and during working
hours.4 The Regional Director found that certain
statements in the speech constituted objectionable
conduct sufficient to set aside the election. Specifi-
3 Objection 3 alleged as objectionable threats and promises essentially
identical to those raised in Objection I and thus were considered together by
the Regional Director and the Board.
I In Objection 5 the Union alleged that in addition to the conduct specified
in Objections 1-4, Respondent by "other acts and conduct" interfered with
the election. The Regional Director found that the evidence offered by the
Union in support of its allegations in Objection 5 was insufficient to establish
objectionable conduct.
However, as noted above, the Regional Director also examined the text of
a speech delivered by Respondent's president and found certain statements
to be objectionable misrepresentations. Although the Union had referred to
that speech in another objection and had only complained of certain alleged
threats and promises of benefits, the Regional Director was "not required to,
nor [could] he properly, ignore evidence relevant to the conduct of the elec-
tion ... simply because the Union may not have specifically mentioned such
conduct in its objections." American Safety Equipmenr Corporation, 234
NLRB 501 (1978).
241 NLRB No. 11
102
ROBBINS & MYERS, INC.
cally, the Regional Director found that three passages
constituted misrepresentations involving substantial
departures from the truth at a time which prevented
the Union from making an effective reply, and that
such misrepresentations could reasonably be expected
to have had a significant impact on the election. Ac-
cordingly, applying the standard enunciated in Holly-
wood Ceramics Company, Inc.,5 the Regional Director
recommended setting aside the election.
The first passage involved Respondent's character-
ization of the employees' right to oust the Union once
they had selected it as their collective-bargaining rep-
resentative:
What the pushers have not told you, and hope
you do not realize, is that once a union gets in,
there is basically no turning back-you are stuck
with it from then on.
The Regional Director found this passage objection-
able in that it misled the employees as to their right,
as provided in Section 9(c) of the Act, to petition for
an election to decertify a union.
Respondent argues that the statement is not mis-
leading since it does not purport to be a full descrip-
tion of Section 9(c) and in view of the success rates of
decertification petitions, it merely states the reality
that "basically" unions are rarely ousted. Finally, Re-
spondent contends that the Board has held to be
unobjectionable stronger statements on the same sub-
ject.
We agree with the Regional Director. Section 9(c)
of the Act provides employees with a clear and un-
mistakable right to oust a union as their collective-
bargaining representative. Thus, Hennessey's state-
ment that "there is basically no turning back" is obvi-
ously misleading. Nor does the use of "basically" sig-
nificantly lessen the degree of misrepresentation. The
right to file a petition to decertify a union is as sub-
stantial as the right to file a petition for union repre-
sentation. The failure to allude to the right to oust a
union when coupled with the admonition that "there
is basically no turning back" is clearly an attempt to
disguise that right and to convey the impression that
employees have little or no recourse against a union
with which they have become disaffected. 6
' 140 NLRB 221, 224 (1960). Respondent's contention that Shopping Kart
Food Market, Inc., 228 NLRB 1311 (1977), is dispositive of the issues here is
without merit. In General Knit of California, Inc., 239 NLRB 619 (1978), the
Board overruled Shopping Kart and returned to the standard for review of
campaign propaganda as expressed in Hollywood Ceramics. Furthermore,
since both the representation and unfair labor practice proceedings in this
case were originally decided under the principles enunciated in Hollywood
Ceramics there is no basis for applying Shopping Kart on remand. Blackman-
Uhler Chemical Division-Synalloy Corporation, 239 NLRB 637 (1978).
6 Northlake Convalescent Hospital, 173 NLRB 992 (1968), which is relied
on by Respondent, is distinguishable from this case. In Northlake, the Board
found the allegedly objectionable statement to be "ambiguous and [to] not
constitute such a misrepresentation as would impair a free expression of
choice by the employees." In contrast, the statement in this case clearly and
This misrepresentation could reasonably be ex-
pected to have had a significant impact on the elec-
tion. By misrepresenting the finality of the employees'
selection of the Union as their representative, Re-
spondent has unfairly distorted the consequences of
making such a decision. Common sense dictates that
an irreversible decision will be approached with
greater caution. Any hesitation or reluctance to vote
for union representation will naturally be increased
when the risk of making that decision is exaggerated
by the spectre of an unbreakable commitment. Simi-
larly, presenting the decision to vote for union repre-
sentation as irreversible also affects the employees'
ability to evaluate other election propaganda. Em-
ployer suggestions as to the deficiencies of union rep-
resentation which otherwise might be dismissed in
light of the opportunity to later oust the union if
those allegations prove to be true are not so easily
disregarded when that opportunity does not exist.
Finally, as a part of one of Respondent's central
themes in the speech this misrepresentation is espe-
cially influential. Hennessey's concluding message is
that the employees should give management another
year without the Union. This appeal is clearly more
attractive in the context of the distorted picture of the
alternatives that Respondent had presented to the
employees: one more year with management or for-
ever with the Union.
The second objectionable passage involved the
rights of employees to communicate with their em-
ployer once they are represented by a union.
A union is nothing more than an outsider.
When this outsider comes on the scene the em-
ployees lose all rights for direct communication
with the Company.
The Regional Director found that this statement mis-
represented the rights provided in Section 9(a) of the
Act. Respondent contends that Board precedent has
permitted similar and stronger statements by other
employers.7
unambiguously conveys the impression that the employee's choice of repre-
sentative is irreversible.
I The cases cited by Respondent are not dispositive of the issue before us
for two reasons. First, Hennessey's statement is stronger and broader than
any statement in those cases. His comments were in complete contradiction
to the right provided by statute. His misrepresentation was unambiguously
extreme both in stating individual rights were completely eliminated and in
extending this restriction generally to communication with the employer.
Second, none of the cases cited by Respondent nor related precedent specif-
ically address the issue which is presented here. In those cases, the Board
analyzed the statements, which described the right of individual employees
to directly communicate with their employer, in terms of whether the em-
ployer was threatening to bar such access in retaliation for selecting union
representation or whether the employer was merely predicting the future
reality of a grievance procedure once a union is involved. Compare Han-Dee
Pak, Inc., 232 NLRB 454 (1977), and Graber Manufacturing Company., Inc.,
158 NLRB 244, 246-247 (1966), enfd. 382 F.2d 990 (6th Cir. 1967); with
(Continued)
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first proviso to Section 9(a) of the Act em-
phatically reserves to employees the right "to present
grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bar-
gaining representative." Hennessey's statement flatly
declares otherwise stating that "all rights for direct
communication" (emphasis supplied) are lost. Thus,
we agree with the Regional Director that Hennessey's
statement constitutes a misrepresentation involving a
substantial departure from the truth.
That this misrepresentation is one which could rea-
sonably be said to have a significant impact on the
election is also clear. By its very nature, a representa-
tion election involves the decision whether to sacrifice
certain individual rights and interests in favor of col-
lective action and representation by a union. Cer-
tainly the extent to which the Act has preserved the
rights of individual employees even after a union has
been selected is a matter of great concern to the em-
ployees in the process of making that decision. Thus,
Respondent's misrepresentation impacts directly on
the employees' evaluation of an important consider-
ation in the election by erroneously exaggerating the
extent to which the employees lose their individual
rights to the collective representative.
The final objectionable passage purported to de-
scribe the union-security provision that the union
would be likely to demand:
Worzalla Publishing Co., d/b/al National Bookbinding Co., 171 NLRB 219,
220 (1968), and Westmont Engineering Co., 170 NLRB 13 (1968). In those
cases in which the statements were found to constitute threats, the Board
determined that by distorting the employees' right under Sec. 9(a) of the Act
the employer was not simply describing the future, but instead was implicitly
indicating that, regardless of the statutory right, it would deny the employees
the benefit of direct access if they chose union representation. See Cosmo
Graphics, Inc., 217 NLRB 1061, 1065 (1975); Jacob Wiesel d/b/a Saticoy
Meat Packing Co., 182 NLRB 713, 714 (1970); Tunica Manufacturing Com-
pany, Inc., 182 NLRB 729, 740 (1970); Henry I. Siegel Co., Inc., 172 NLRB
825, 837 (1968), enfd. in pertinent part 417 F.2d 1206, 1215 (6th Cir. 1969).
Bradenburg Telephone Company, 164 NLRB 825, 833-834 (1967), enfd. in
pertinent part 408 F.2d 377 (6th Cir. 1969). However, in the absence of other
evidence of coercion, the Board has been reluctant to find similar statements
to constitute coercive threats. See Allied Stores of New York, Inc., d/b/a
Gertz, 197 NLRB 718, 723 (1972); C K Coal Company, 195 NLRB 1038,
1039 (1972); Bostitch Division of Textron, Inc., 176 NLRB 377, 379 (1969);
but see James Hotel Company, a Corporation d/bla Skirvin Hotel and Skirvin
Tower, 142 NLRB 761, 763 (1963) (statement was not as strong a misstate-
ment of the law).
In none of these decisions did the Board consider, as we are asked to do in
this case, whether the statement, even if not a threat, was objectionable in
view of the standards of conduct for campaign statements set forth in Holly-
wood Ceramics, supra, and recently reaffirmed in General Knit, spra. Al-
though clearly interrelated in this case, the determination of whether a state-
ment constitutes a threat or an objectionable misrepresentation involves
different inquiries and reflects different concerns. In the former analysis, the
focus of consideration is whether the employees' free choice has been inter-
fered with by improperly attaching a penalty to the exercise of that choice.
In the latter approach, however, the question is whether the employees' free
choice has been interfered with by the improper misrepresentation of some
fact on which the employees might base their choice. Thus, that statements
in the cases relied on by Respondent were found not to be threats to with-
draw the benefit of direct access to management is not dispositive of the issue
here since it is the distortion of relevant information that constitutes the
interference in this case and not the implied threat of retaliatory action.
If the union is elected, there are usually two
things that they go after:
1. The first thing they go after is a closed
shop. Closed shop means that the Company
agrees that no non-union (Non-excluded) em-
ployees will be employed by the Company-that
everyone is union.
The Regional Director found that this statement con-
stitutes a material misrepresentation since "presum-
ably the Petitioner would not seek an unlawful union
security contractual provision-i.e., a 'closed shop.' "
Respondent argues that the use of closed shop is lay-
man's terminology for a permissible union-security
provision and that Board precedent has found the use
of the term unobjectionable.
Contrary to Respondent's characterization, how-
ever, the statement in this case went beyond merely
referring to a permissible union-security provision as
a closed shop. 8 Hennessey's statement warns clearly
that only union people will be employed by Respon-
dent under the closed shop. Of course, this represen-
tation is substantially incorrect in two important re-
spects. First, new employees need not be union
members and are entitled to a 30-day grace period
before being required to pay any dues or fees. Second,
all employees are only required to meet their financial
core obligations and need not become members of the
Union. Thus, we conclude that Hennessey's state-
ment is a substantial misrepresentation. 9
We also agree with the Regional Director's judg-
ment that such a misrepresentation could reasonably
be said to have a significant impact on the election.
The implication of Hennessey's statement is that the
Union will seek a closed-shop provision under which
an employee would lose his job if he insisted on his
right to refrain from becoming a union member. This
misstatement leaves the impression with the employ-
ees that if they exercise a protected right they risk
losing their jobs. Accordingly, we conclude that the
employees are likely to be influenced by it.
In summary, these misrepresentations distorted the
consequences of voting for the Union. The employees
were left with the impression that a vote for a union is
irreversible, that once a union is selected the employ-
' On this basis, the case cited by Respondent, Pollock Mill Co., 104 NLRB
227, 230 (1953), is distinguishable.
I The degree of misrepresentation is increased by Hennessey's subsequent
statements concerning the dues-checkoff authorizations:
2. The second thing the union goes after is a simple thing called dues
check-off. This simply means that the Company will take out of your
check any dues, fines, or assessments, as defined by the union, without
question.
By not indicating that dues-checkoff provisions are voluntary and by stating
that fines and assessments will be collected through the checkoff, Hennessey
implied that employees will automatically be subject to union discipline as
enforced through fines and assessments. Thus, his comments reinforced the
impression left by his closed-shop remarks that actual membership in the
union will be required as a condition of employment.
104
ROBBINS & MYERS, INC.
ees are excluded from contact with the employer, and
that the employees' job security is dependent on full
union membership and thus is subject to union disci-
pline. The misrepresentations came from a credible
source, Respondent's president, and were made to
several groups of employees comprising a large ma-
jority of the unit populations and occurred the day
before the election at a time when the Union did not
have an opportunity to make an effective response
and when the impact of the statements would be
greatest.
Although we recognize that in some circumstances
each of the misrepresentations made here might not
warrant setting aside the election, we conclude that in
this case, for the reasons stated above, these misrepre-
sentations occurring together are a proper basis for
setting aside the second election. Accordingly, we
hereby reaffirm our prior findings that the Union was
properly certified and that Respondent violated Sec-
tion 8(a)(1) and (5) by its refusal to bargain.
'l In its defense to the Union's Objection 2, Respondent indicated that
Hennessey spoke to most of the employee complement the morning of the
day before the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby affirms as its Order the Order
heretofore entered in this proceeding on October 21,
1976.
MEMBER PENELLO, dissenting:
I find no grounds for setting aside the second elec-
tion on the basis of the three alleged misrepresenta-
tions." As noted in my dissenting opinion in General
Knit of California, Inc., 239 NLRB 619 (1978), I ad-
here to the sound principles of Shopping Kart Food
Market, Inc., 228 NLRB 1311 (1977). Accordingly, I
would overrule the Union's Objection 5, certify the
results of the second election, and dismiss the com-
plaint in its entirety.
" Although the statements found objectionable by the majority were not
specifically alleged as such in the Union's Objection 5, 1 nevertheless agree
with the majority that those statements were properly before the Regional
Director and the Board since other portions of the same speech were the
subject of specific objections. See my concurring opinion in American Safety
Equipment Corporation, 234 NLRB 501 (1978).
105