Automation & Measurement Div., The Bendix Corp. v. NLRB

• Decision Date: 30 August 1968
• Docket Number: 18038.,No. 17771,17771
• Parties: AUTOMATION AND MEASUREMENT DIVISION, THE BENDIX CORPORATION, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

400 F.2d 141 (1968)

AUTOMATION AND MEASUREMENT DIVISION, THE BENDIX CORPORATION, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 17771, 18038.

United States Court of Appeals Sixth Circuit.

August 30, 1968.

John O. Henry, Dayton, Ohio, for petitioner; Hubert A. Estabrook, Francis X. Lee, Dayton, Ohio, on brief; Estabrook, Finn & McKee, Thomas B. Kreutz, Ernest T. Hix, Dayton, Ohio, of counsel.

Gary Green, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Corinna Lothar Metcalf, Atty., N.L.R.B., Washington, D. C., on brief.

Before WEICK, Chief Judge, and PHILLIPS and McCREE, Circuit Judges.

WEICK, Chief Judge.

In these consolidated cases, Bendix seeks a review of two decisions and orders of the Board. The first one found that Bendix's subsidiary, The Sheffield Corporation,¹ violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, (29 U.S.C. Sec. 151 et seq.) by refusing to bargain with the Union which had been certified by the Board, and the second which found that it violated Section 8(a) (5) and (1) of the Act by unilaterally announcing and effecting changes in wages, hours and working conditions without prior notice to or consultation with the Union. The Board's decisions and orders are reported at 163 N.L.R.B. No. 34 and 165 N.L. R.B. No. 132.

The principal issue in the cases is the validity of elections conducted by the Board in 1964 and 1965. Although the Board states in its brief that the results of the 1964 election were "inconclusive" the fact is that the Union lost by 34 votes.² The Union filed objections to the election alleging that Bendix interfered with the election by (1) threatening employees with loss of benefits if the Union were to win the election and (2) promising a wage adjustment if the Union were defeated. The Regional Director sustained the objections without a hearing and ordered a new election. The Board sustained the Regional Director without a hearing.

Prior to the second election Bendix moved for a supplemental hearing and for the opportunity to offer evidence on the issue of the exclusion from the bargaining unit of about 60 job leaders. These job leaders had always been included in the voting units in previous proceedings.³ Neither the Company nor the Union had requested their exclusion but the Regional Director had ruled on his own initiative that the leaders were supervisors. This motion was denied.

Bendix, prior to the second election, filed with the Regional Director an unfair labor practice charge against the Union alleging that during the campaign for the first election the Union, in a handbill distributed to employees, had falsely stated that "the United States Government guarantees you that you will lose no benefits except those you wish to change" if you vote for the Union. The Regional Director dismissed the charge. The General Counsel for the Board sustained the Regional Director on March 4, 1965.

The second election was conducted on February 17, 1965. Job leaders were excluded from voting in sufficient numbers to have affected the results of the election. After conducting hearings on challenged ballots, the result was as follows:

                  No Union                    — 266
                  Union                       — 278
                  Difference                  —  12
                  Remaining uncounted ballots —  11
                

The Company filed objections to the election again raising the issue of the exclusion of job leaders from the bargaining unit and also the misrepresentation by the Union to the employees in asserting that the United States Government and the National Labor Relations Board guaranteed certain minimum benefits. The Regional Director overruled the objections and ordered certification of the Union. The Company contended that the second election was illegal and refused to bargain with the Union.

Campaign Statements

The Company did not welcome the advent of the Union. Unsuccessful efforts had been made to unionize the plant since 1945. The 1964 campaign was a heated one with charges and counter-charges. The Union circulated among the employees about 60 handbills. The Company sent out ten letters and one copy of its publication "The Sheffield Gazette" to its employees.

The Union emphasized the benefits of Union membership while the Company endeavored to make clear the detriments. The Company also pointed out the many benefits which the employees had received from the Company over the years without a union.

The following excerpt from the Supplemental Decision and Direction of Second Election indicates the real reasons of the Regional Director for setting aside the first election.

"In other communications the Employer made clear to employees the results of unionization. The Employer\'s letter of June 8, 1964, includes the following,

`Bargaining with an International Union is a two-way street, and it is entirely possible that our Sheffield wages and benefit programs would be altered upward or downward, created or eliminated, as a result of this bargaining. Bargaining would have to begin from the zero point, item by item! If someone tells you that what you now have is guaranteed by the IEU or by some law, he is not being factual!\'

"On the other hand, in the minutes of the factory Suggestion and Complaint Committee for July 7, 1964, the Employer stated its position in the event the Petitioner were rejected, as follows:

`In answer to inquiry about the usual November wage and benefit discussions, it was indicated that if the S & C committees are permitted to continue their independent representation of Sheffielders, suggestions toward improved compensation will be given through management consideration in light of economic conditions at that time.\'

"In the same minutes the Employer\'s vice-president `indicated that so far this has been a profitable year although the figures are not complete for June.\'"

But the Union had responded to the Company's letter of June 8th in its handbills of June 12 and July 13, 1964, as follows:

From the handbill dated June 12, 1964

"Well we don\'t know what the Company calls zero * * * the IUE\'s and the United States Government\'s is where you presently are in wages, insurance, pensions, profit sharing and all other conditions of employment. There is only one way to go, and that is up.

Now, IUE doesn\'t ask you to just take our word on the Company taking away your benefits, but rather we ask you to take the word of the NLRB."

From the handbill dated July 13, 1964

"Q. Can we lose any benefits if we vote for the union?

A. IUE and the United States Government guarantees you that you will lose no benefits except those you wish to change. The Company can take away nothing. No IUE member has ever lost a benefit as a result of becoming a part of IUE."

The handbill of June 12th was a little more than one month before the election and the handbill of July 13th was two days prior thereto.

In a letter dated December 16, 1964, the Union in referring to the order of the Board setting aside the first election stated:

"This decision on the part of the Board should convince you that the Company cannot take away benefits you presently have * * * that bargaining starts from there upward. You have everything to gain and nothing to lose."

The Company's letter of June 8, 1964, stated that bargaining was a two-way street and that it was possible that wages and benefit programs would be altered upward or downward, created or eliminated as a result of this bargaining, and that bargaining would start from zero.

Contrary to the Board's ruling, we see nothing threatening or coercive for the Company to predict the possibilities or probabilities which might result from the collective bargaining process or from plant unionization. In the recent case of N.L.R.B. v. TRW-Semiconductors, Inc., 385 F.2d 753, 759-760 (9th Cir.1967) Circuit Judge Duniway, who wrote the opinion for the Court, said:

"5, 6 As to the third theme, the statements that the union `may not be able to keep all the fine things you now have,\' that no one can assume that `all the fine things we now enjoy would automatically be continued,\' and that in bargaining the company `would have to begin from scratch * * * to protect our competitive position\' are singled out by the trial examiner for special comment. He characterized them as `clearly calculated to convey a message that their current fringe benefits would certainly be jeopardized,\' and thus `reasonably tending to trigger responses bottomed on fear\' and therefore `coercive.\' It is arguable that, because the employer would be one of the bargaining parties, it could start the bargaining by offering present fringe benefits and go on from there, and that the propaganda is a threat that it will `start from scratch,\' meaning that it will, at the beginning, offer no fringe benefits at all — a matter that it can control. Applying section 8(c), we think that it protects these statements. They are predictions of possibilities or probabilities, not direct statements of what will happen, as was the case in N.L.R.B. v. Marsh Supermarkets Inc., 7 Cir.1963, 327 F.2d 109, supra. See N. L. R. B. v. Mallory Plastics Co., 7 Cir., 1966, 355 F.2d 509; J. S. Dillon & Sons Stores Co., Inc. v. N. L. R. B., 10 Cir., 1964, 338 F.2d 395. The question is not free from doubt, but we believe that, because free speech is involved, both we and the Board should heed the Supreme Court\'s dictum, regarding section 8(c), in Linn v. United Plant Guard Workers, 1966, 383 U.S. 53, 62, 86 S. Ct. 657, 663, 15 L.Ed.2d 582:

`* * * Cases involving speech are to be considered "against the background of profound * * * commitment to the principle that debate * * * should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks."\'

"As the court said in Southwire Co., v. N. L.

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