N.L.R.B. v. Allis-Chalmers Corp.
| Decision Date | 30 August 1979 |
| Docket Number | ALLIS-CHALMERS,78-3322,Nos. 78-1742,s. 78-1742 |
| Citation | 601 F.2d 870 |
| Parties | 102 L.R.R.M. (BNA) 2194, 86 Lab.Cas. P 11,535 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate, Gen., Counsel, N.L.R.B., Joseph Oretel, Atty., Washington, D. C., for petitioner in both cases.
Jolly, Miller & Milam, E. Grady Jolly, James R. Lockard, Jackson, Miss., for respondent in both cases.
Lynn Agee, Memphis, Tenn., for intervenor Int'l Union, United Automobile, Aerospace & Agricultural Implement Workers of America.
Charles M. Paschal, Jr., Director, Region 15, N.L.R.B., New Orleans, La., for other interested party.
Applications for Enforcement of Orders of the National Labor Relations Bd.
Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.
After three successive elections, 1 the United Auto Workers (UAW) finally won a majority in a representational election in the Allis-Chalmers Corporation plant in Jackson, Mississippi. Allis-Chalmers filed a number of objections to the election with the National Labor Relations Board. The Regional Director for the Board rejected these contentions and certified the UAW; the Board adopted the Regional Director's decision. In separate proceedings, the Board subsequently found Allis-Chalmers had committed several unfair labor practices in failing to bargain with UAW. On consolidated applications for enforcement of separate orders of the Board, we enforce in part and remand in part.
The issue common to both applications is whether the Board correctly certified the results of the election, recognizing the UAW as the collective bargaining representative. If the Board were incorrect in this determination, then Allis-Chalmers could not be liable for the subsequent refusals to bargain. In reviewing this decision, the appropriate standard of review is whether the decision is reasonable and is supported by substantial evidence; Allis- Chalmers carries the burden of proving that the election should be set aside. Contract Knitter, Inc. v. NLRB, 545 F.2d 967 (5 Cir. 1977).
In attacking the certification, Allis-Chalmers points to three items of information disseminated by the UAW that it claims infected the pre-election process. We will deal with them Seriatim.
A. UAW Handbill Five weeks prior to the election the union circulated a handbill which stated that the Board had "recommended that Randy Cook (a fired employee) be put back to work with full pay." This was a misstatement of fact; the Regional Director had issued a complaint against Allis-Chalmers, but the Board otherwise had not acted on the Cook discharge.
The Board asserts that this misrepresentation did not vitiate the election because the company and the union had corrected the impression imparted by the handbill. Allis-Chalmers argues that this conclusion is in conflict with Formco, Inc., 96 LRRM 1393 (1977). In Formco the Board, faced with a similar fact situation, determined that misstatements concerning Board functions required a new election. The Board rejected as irrelevant the argument that the employer had the opportunity to respond and had failed to do so.
It could perhaps be argued that the Employer had ample time to respond. Petitioner's misstatement here occurred on March 11, 1977, and the election was held some 7 weeks later, on April 29, 1977. However, we find the fact that there may have been time to respond is not a valid consideration with respect to the conduct here involved. The Petitioner's misstatements were reasonably calculated to mislead employees into believing that the Board had judged the Employer to have committed unfair labor practices whereas, in truth, such practices were never proven. The impact of the Petitioner's message upon the freedom of choice of the voter is not amenable to credible or effective response by the Employer. Employees may well view any response by the Employer as an attempt to extricate itself from the damaging effects of an adverse finding by the Board by seeking to mislead them.
Id. at 1394. In light of this apparent conflict between the Board's reasoning in the present case and the Formco language, Allis-Chalmers urges that we remand to the Board for an explanation of the inconsistency.
We believe, however, that the present decision can be reconciled with Formco, obviating the necessity of remand. Under Hollywood Ceramics,51 LRRM 1600 (1962), 2 the Board applies four criteria in determining if a misrepresentation vitiates an election. 3 The third criterion requires an inquiry whether the opposing party had an adequate opportunity to reply and to correct the misrepresentation. The quoted language from Formco appears to us to merely repudiate the relevance of this speculative inquiry in determining the likelihood that a misstatement had a significant effect on an election. Under Formco, in light of the problematic effect of disclaimers by an opposing party, that party would not be penalized for failing to respond. In the present case, however, the Board determined that clarifications actually given by the employer And the union were sufficient to dispel the insidious effects of the original misstatement. We do not believe that Formco forecloses this type of factual inquiry into the actual effect of misstatements upon an election. The premise of Allis-Chalmers' assertion, as clarified at oral argument, appears to be that Formco announced a Per se rule mandating a new election whenever the Board is implicated by a misstatement. Although this may be appropriate as a matter of policy, we do not perceive that Formco announced this draconian remedy.
B. Gadsen Check Stubs Three days before the election UAW mailed to Jackson employees copies of check stubs from the Gadsen, Alabama plant of Allis-Chalmers, which the union had previously organized. Copies were also distributed by hand two days before the election. The wages on the stubs did not reflect only base hourly wages, but were calculated in part upon incentive compensation. No indications of this additional factor were noted on the stubs.
The Regional Director, applying the Hollywood Ceramics test, See note 3, Supra, determined that the union did not have special knowledge of the Gadsen pay schedules, that Allis-Chalmers had the opportunity to explain the stubs, and that the employees were in a position to know the truth. After review of the evidence summarized in the Regional Director's decision, it appears that this determination is based upon substantial evidence. The evidence reflects that during a previous election at the Jackson plant in 1974 the union had attempted a similar ploy, but had been stymied by the actions of competing unions in informing the employees of the discrepancies between the stubs and the base hourly wages. Moreover, prior to the present election, representatives of Allis-Chalmers had warned employees that the union might attempt the same trick, and after the Gadsen stubs were distributed, Allis-Chalmers vigorously warned employees of the possibility of discrepancies. Finally, the evidence reflects that UAW representatives alluded to discrepancies when questioned by employees at meetings.
C. Master Contract Allis-Chalmers charged that the union represented to employees that there was a master contract covering all Allis-Chalmers plants and that this representation led employees to believe that the union necessarily could secure benefits equivalent to those in northern plants. There is, in fact, no master contract as such. 4 The Regional Director assumed Arguendo that the union had misrepresented the existence of a master contract, but found that the union and Allis-Chalmers had effectively dissipated any misrepresentation in advising employees that no benefits were assured and that everything was subject to bargaining. Allis-Chalmers, however, argues that
The Regional Director's finding in this regard fails to take into account the differentiation which must be made between what an employee could reasonably believe would be the result of bargaining on a multi-plant basis for a Single contract governing the wages, hours and working conditions of all Union represented employees of the Respondent's plants and the result of merely bargaining for a contract covering the wages, hours and working conditions of the Jackson facility's employees.
Respondent's Brief at 27. We do not believe it reasonable to assume, however, that, in light of the few references to a master contract and the constant iteration by Allis-Chalmers and the union that benefits and wages at the Jackson plant would have to be negotiated, the employees would presume that voting for the union would necessarily secure for them the enticing benefits of their northern compatriots. Furthermore, the record reveals that the existence and applicability of a general contract were discussed at employee meetings, reflecting a dialogue that enabled the voters to effectively evaluate the proposition.
Although we cannot condone these union misstatements, we do not think that the effects of these particular instances were such as to vitiate the election. It is axiomatic that the good sense of the voters must be relied upon in the first instance to effectively evaluate electioneering hyperbole. This principle is especially compelling in the present case since, because of the recurrent representational elections at the Jackson plant, the particular electorate assumedly was more sophisticated, and certainly more experienced, than most. With reference to this premise and our general deference to the Board in certification matters, our evaluation of the evidence leads us to the conclusion that the Board properly certified the union.
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