Van Dorn Plastic Machinery Co. v. N.L.R.B.
| Citation | 736 F.2d 343 |
| Decision Date | 17 July 1984 |
| Docket Number | 83-5118,Nos. 83-5012,s. 83-5012 |
| Parties | 116 L.R.R.M. (BNA) 2647, 116 L.R.R.M. (BNA) 3423, 101 Lab.Cas. P 11,075 VAN DORN PLASTIC MACHINERY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Gregory A. Jacobs, Robert L. Larson, Keith A. Ashmus (argued), Thompson, Hine & Flory, Cleveland, Ohio, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Patrick Szymanski (argued), Washington, D.C., for respondent.
Before LIVELY, Chief Judge, and JONES and CONTIE, Circuit Judges.
The most important issue in this labor case relates to the proper standard for determining whether communications from a union or an employer near the time of a representation election are sufficiently deceptive to require setting the election aside. After much vacillation the National Labor Relations Board (the Board) appears to have settled on a standard, stated in Midland National Life Insurance Co., 263 NLRB No. 24 (1982), as follows:
In sum, we rule today that we will no longer probe into the truth or falsity of the parties' campaign statements, and that we will not set elections aside on the basis of misleading campaign statements. We will, however, intervene in cases where a party has used forged documents which render the voters unable to recognize propaganda for what it is. Thus, we will set an election aside not because of the substance of the representation, but because of the deceptive manner in which it was made, a manner which renders employees unable to evaluate the forgery for what it is. As was the case in Shopping Kart, we will continue to protect against other campaign conduct, such as threats, promises, or the like, which interferes with employee free choice.
Van Dorn Plastic Machinery Company (Van Dorn) refused to bargain with District 54 of the International Association of Machinists and Aerospace Workers (the Union) following a Board-conducted election at which 151 employees at its Strongsville, Ohio, plant voted for the Union and 131 voted against it. In timely objections to the election Van Dorn charged several irregularities, including the allegation that the Union had distributed a flyer on election day which, while purporting to show that employees of another company had received favorable wage rates and benefits from a Union-negotiated contract, was in fact a forgery.
The Board's regional director conducted an investigation, without a hearing, and issued a recommendation that all of the objections be overruled. The Board adopted the regional director's findings and recommendation and certified the Union as the exclusive bargaining representative of Van Dorn's production and maintenance employees. The decision which finally brought the dispute to this court resulted from an amended complaint which consolidated several unfair labor practice charges which the Union filed in the wake of the election. In addition to charging Van Dorn with refusal to bargain with the certified representative of its employees, the Union charged the employer with unfair labor practices consisting of unilaterally changing its paid lunch period policy and unilaterally implementing a new attendance control policy, both without prior bargaining with the Union, and unlawfully interrogating and coercing employees.
Two hearings on the charges were held before an administrative law judge (ALJ), the second pursuant to a remand by the Board. Following the second hearing the ALJ issued a decision recommending a finding that the Union had misrepresented the actual negotiated wage rates in the flyer, but that the misrepresentation was not so substantial as to have significantly affected the election results. The ALJ thus determined that the certification was valid and that Van Dorn had violated section 8(a)(1) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1) and (5) (1976) by refusing to bargain with the Union. The ALJ also found that Van Dorn had interrogated and coerced employees in violation of section
8(a)(1), but that it had not violated section 8(a)(5) by implementing an attendance control policy and changing its paid lunch policy without prior bargaining. However, the ALJ did find that Van Dorn had violated section 8(a)(5) by not bargaining about the effects of the change in lunch policy.
In Midland National Life, the Board traced the history of its treatment of campaign propaganda. In the early years under the Wagner Act the Board disregarded issues of truth or falsity of campaign propaganda, assuming that employees would recognize propaganda for what it was, and discount it. Midland National Life at 129. Following passage of the Taft-Hartley Act the Board shifted its stand and set aside elections where it found that employees were deceived by trickery or fraud as to the source of campaign propaganda and were unable to recognize or evaluate propaganda. See United Aircraft Corporation, 103 NLRB 102 (1953). Another change in the Board's treatment of campaign propaganda occurred in Hollywood Ceramics Company, 140 NLRB 221 (1962). There the rule was announced that an election would be set aside "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 misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election." Id. at 224.
Fifteen years later the Board overruled Hollywood Ceramics, stating in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), that it would "no longer probe into the truth or falsity of the parties' compaign statements" but would intervene "in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes, or the use of forged documents which render the voters unable to recognize the propaganda for what it is." Id. at 1311, 1313. Incredibly, the Board overturned Shopping Kart and reinstated the Hollywood Ceramics standard less than two years later in General Knit of California, Inc., 239 NLRB 619 (1978), and then reversed itself again in Midland National Life, returning to the rule of Shopping Kart. When the first hearing before the ALJ in the present case took place the Shopping Kart standard prevailed. On the last day of that hearing the General Knit decision was issued. By the time this case reached the Board for its final decision, General Knit had been discarded in favor of a return to the Shopping Kart standard in Midland National Life.
Applying its recently announced Midland National Life rule, the Board held that the election day flyer was not a forgery and, without analyzing the truth or falsity of the statements which it contained, determined that "the Union's campaign material involved here was not objectionable...." The Board thus upheld the finding of the ALJ that Van Dorn violated section 8(a)(5) by its refusal to bargain with the Union. The Board also upheld the findings of the ALJ that Van Dorn violated section 8(a)(1) by interrogating and coercing employees and by refusing to bargain with the Union on the effects of its unilateral change in the paid lunch policy. However, the Board disagreed with the ALJ in two respects. It found the unilateral change in Van Dorn's paid lunch policy during the pendency of its exceptions to the regional director's findings on its objections to the election to be a violation of section 8(a)(5) and (1). The Board also found the announcement of a change in Van Dorn's attendance control system in June 1978 a violation of section 8(a)(5) and (1). Van Dorn was ordered to cease its unfair labor practices, to recognize, and upon request, meet and bargain with the Union and to post a notice to its employees. The decision and order of the Board appear at 265 NLRB No. 36 (1982). Van Dorn filed a petition to review the decision and
order, and the Board filed a cross-application for enforcement.
We agree with the ALJ that the flyer which was distributed by the Union shortly before the election contains misrepresentations concerning wage rates and, possibly, the identity of the union involved with the other employer. However, it is not a forgery. It is a memorandum to Van Dorn employees on IAM District Lodge 54 letterhead which purports to answer representations made in a pamphlet previously distributed by Van Dorn. An attached sheet lists job classifications and wage rates along with several excerpts from a collective bargaining agreement.
Van Dorn argues that the page of excerpts is a forged document because it is not clear what is real and what is fabricated. It also argues that it is a forgery because the Union intentionally blocked out the identity of the contracting local to give the impression that the agreement involved a near-by plant. In fact, the wage rates listed were those of a plant in California and were a compilation of base rates and premiums. As presented, the listed rates overstated the actual wages being paid. Anyone who examined the document would consider the list as having been taken from the collective bargaining agreement. Nevertheless, it was not a forgery merely because the rates presented were a compilation of the negotiated base rates and premiums. There was no claim by the Union that the listing was complete or that it was anything more than an example of the rates in one of IAM's contracts. Nor was it a forgery merely because the identity of the contracting local had been obscured. Measured by the Midland National Life standard, the Union flyer does not constitute a proper basis for setting aside the election.
There remains the question of whether the Midland National Life standard should be...
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