Cascade Corporation v. NLRB, 71-1644.

• Decision Date: 24 August 1972
• Docket Number: No. 71-1644.,71-1644.
• Citation: 466 F.2d 748
• Parties: CASCADE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

466 F.2d 748 (1972)

CASCADE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor.

No. 71-1644.

United States Court of Appeals, Sixth Circuit.

August 24, 1972.

Verne W. Newcomb, Jack B. Schwartz, Sabin, Newcomb, Sabin & Meyer, Portland, Or., Martin, Browne, Hull & Harper, Springfield, Ohio, on brief, for appellant.

Joseph C. Thackery, N. L. R. B., Washington, D. C., Marcel Mallet-Prevost, Asst. Gen. Counsel, William Wachter, N. L. R. B., Washington, D. C., on brief, for appellee.

Edwin G. Fabre, Detroit, Mich., Stanley Lubin, Asst. General Counsel, Stephen I. Schlossberg and John A. Fillion, Detroit, on brief, for intervenor.

Before EDWARDS and MILLER, Circuit Judges, and ENGEL, District Judge.^*

PER CURIAM.

Cascade Corporation has petitioned this Court to review a decision and order of the National Labor Relations Board upholding the validity of its certification of the intervenor, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as collective bargaining representative for the employees of the relevant unit at Cascade's Springfield, Ohio plant; finding Cascade guilty of refusal to bargain collectively in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5); and ordering Cascade to bargain collectively with the union. The National Labor Relations Board has filed a cross-petition seeking enforcement of its order.

For some years, the employees of Cascade's Springfield, Ohio, plant were represented by an independent local, Employee's Independent Union of Cascade Corporation. On September 25, 1969, the independent local served notice that it did not intend to review the existing contract which had been negotiated in 1966 and was due to expire December 1, 1969. Bargaining ensued. Apparently there was little progress. On December 1, 1969, the intervenor, UAW, submitted a written demand that it and not the independent be recognized as bargaining agent for the unit. The company did not respond. On December 18, 1969, the UAW petitioned the Board for certification. Cascade and the two unions agreed to a consent election to determine whether Cascade's Springfield employees would be represented by the UAW, by the Employee's Independent Union or by no union at all. On December 16, 1969, the Acting Regional Director approved a "Stipulation for Certification Upon Consent Election" which formally provided for the conduct of the election. The election was held on December 31, 1969. 247 of 250 eligible ballots were cast. Of these 131 voted for the UAW and 116 for the independent local. On January 8, 1970, the company filed objections to union conduct which allegedly affected the outcome of the election. Pursuant to Board Rules and Regulations 29 C.F.R. § 102.69(c) the Regional Director conducted an investigation.¹ Of the three matters investigated by the Regional Director Cascade relies here on only one— the alleged "substantial and material misrepresentation of facts"—in asserting the invalidity of the certification.

The company grounds this objection on two circulars, one distributed by UAW on December 29 and the other on December 31. The first purported to compare the provisions of the expired contract with those of contracts negotiated by the UAW at other comparable area plants. The company before the Regional Director pointed to certain factual errors and material omissions in the comparison. The union replied that the circular was prepared in response to a letter distributed by the employer on December 26 and that it represented the most accurate comparison that could be developed in the limited period available.

The second circular (the only one in our view raising a substantial issue) was distributed on the eve and morning of the election. It read:

MESSAGE FROM PORTLAND, OREGON:

Larry Vance, Secretary-Treasurer of Teamster Autotive sic. Local 255 reports the following.

After many years of Independent Union representation employees in Portland, Oregon voted to affiliate with an International Union.

The following is a sample of negotiated rates of pay for certain classifications in the Portland plant:

                  Labor Grade 2—Tool Maker ..... $3.85 to $4.60
                  Experimental Mechanic
                  Maintenance Mechanic A
                   which includes such classifications
                   as electrician, etc. .............. 3.50 to 4.25
                  Labor Grade 4—Assembler A..... 3.45 to 4.10
                  Automatic Lathe Operator A
                  Labor Grade 5—Burner.......... 3.25 to 4.00
                  Labor Grade 6
                  Grinder-Storekeeper ................ 3.15 to 3.75
                  Labor Grade 7
                  Post Drill Operator ................ 2.95 to 3.50
                  Labor Grade 8
                  Lift Truck Operator ................ 2.90 to 3.40
                  Labor Grade 9
                  Maintenance Helper ................. 2.70 to 3.20
                  Labor Grade 10
                  Janitor ............................ 2.50 to 3.05
                

Effective 8-1-70 fifteen (15¢) cents will be added to the minimum and maximum of each of the classifications.

Effective 8-1-71 fifteen (15¢) cents will be added to the minimum and maximum of each of the classifications.

An example is a tool maker who would make $4.90 per hour while the janitor would make $3.35 per hour.

Teamsters Automotive Local 255 extends fraternal greetings and urges your sincere consideration in joining the mainstream of the American labor movement.

LARRY VANCE SECRETARY-TREASURER TEAMSTERS AUTOMOTIVE LOCAL 255 12/31/69"

Cascade's assertions before the Regional Director regarding this letter were set forth in the affidavit of its attorney, Verne W. Newcomb, submitted on January 19, 1970. First, Cascade characterized as "false and misleading" the statement "after many years of Independent Union representation employees in Portland, Oregon, voted to affiliate with an International Union." The company pointed out that the Portland employees had never been represented by an independent union, admitting, however, that, prior to organization by the teamsters, a "shop committee" had served as a sounding board and device for communication at the Portland plant. The union responded that the committee had performed certain of the functions normally performed by a bargaining agent, had been reorganized as an independent union and appeared on the ballot as such in the representation election held at the employer's plant on February 12, 1969. Second, Cascade objected to the "letter's treatment of `rates of pay'", pointing out that labor Grade 4 received $3.45 per hour rather than $3.35 as stated in the circular and asserting that the union had significantly distorted the comparison by carefully selecting the positions discussed and by failing to note differences in the manner of classifying jobs at the two plants. The union acknowledged the $.10 per hour error but stated that the error had been corrected as soon as it was brought to the union's attention and that only approximately thirty uncorrected circulars were actually distributed to Cascade employees. Third, the company asserted that the "letter" was a "forgery," neither authored nor authorized by Larry Vance, secretary-treasurer of the teamster local at the Portland plant, whose name appeared in printed form at the bottom of the circular. This assertion was made on the basis of the Newcomb affidavit to the effect that he had talked with Vance, who had assured him that "he did not write the letter and that he did not in any way authorize the UAW to use his name or that of his local union." The union responded in its non-sworn statement of position that the circular was prepared pursuant to a December 30, 1969, conversation between C. J. Hyde, UAW regional official, and Vance, and that its contents reflect the substance of that conversation. The union argued that the circular did not purport to be a direct communication, observing that the name at the bottom was printed not signed and that the circular opened with the sentence: "Larry Vance, Secretary-Treasurer of Teamsters Automotive Local 255 reports the following." According to the union's unverified statement, Vance indicated to Hyde that "he would be happy to help and support" the union in any way and that it had used this offer by printing a "Message from Portland, Oregon."

In conducting his investigation the Regional Director requested the parties to submit statements of their respective positions "together with evidence in support thereof." As far as his report indicates, nothing was submitted to him that could in any way be characterized as "evidence" other than the Newcomb affidavit submitted on January 19, 1970, which, as indicated, recited a conversation with Vance to the effect that he did not write the "letter" nor authorize the UAW to use his name or that of his local union. Although this affidavit was before him the Regional Director made no mention of it in his report to the Board. He simply relied upon the union's unverified assertion that its representative, C. J. Hyde, had telephoned Vance on December 30, 1969, and that the circular was prepared "pursuant to Hyde's conversation with Vance." The Regional Director apparently found from such unverified assertion of the union that Vance had told Hyde in the telephone conversation that he would be happy to help and support the petitioner in any way "and that the petitioner decided to utilize this offer by printing a "Message from Portland, Oregon.'" It is noteworthy that aside from the Regional Director's reliance upon unsupported assertions as refuting the statements made in an affidavit, the so-called Hyde conversation, even if taken at face value, could hardly be said to constitute authorization on the part of Vance for the use of his name or that of his Local on a circular to be distributed to the Springfield employees. Moreover, the Regional Director's conclusion in effect that a shop committee is substantially the equivalent of an independent union...