NLRB v. Millard Metal Service Center, Inc., No. 72-1255.

• Decision Date: 22 January 1973
• Docket Number: No. 72-1255.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILLARD METAL SERVICE CENTER, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

472 F.2d 647 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILLARD METAL SERVICE CENTER, INC., Respondent.

No. 72-1255.

United States Court of Appeals, First Circuit.

Heard December 5, 1972.

Decided January 22, 1973.

Howard Jay Kaufman, Atty., New York City, with whom Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail Cooley Baskir, Washington, D. C., and David Miller, Attys., were on brief, for petitioner.

Henry G. Stewart, Boston, Mass., with whom William T. Sherry, Jr., and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

In this proceeding the Labor Board seeks enforcement of an unfair labor practice order issued against Millard Metal Service Center, Inc., a corporation engaged in the sale and distribution of brass and related products in Braintree, Massachusetts. This order is based on a Board finding that Millard (the company) violated § 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with the union,¹ as the certified representative of its employees in an appropriate unit.²

On July 12, 1971,³ the Board conducted a consent representation election. Of the twenty-seven eligible voters, eighteen voted for and eight voted against the union. One ballot was challenged. The company challenged the validity of the election and filed timely objection with the Regional Director to the certification of the union. In particular, it charged that the union had misrepresented to the company's employees the wage rates in effect at plants of other employers with whom the union had contracts. The company also charged that the timing of this misrepresentation made by letter dated July 9 made it impossible for it to rebut or otherwise dissipate the effect of the misrepresentation.⁴ On the basis of these allegations the company requested that the election be set aside.

Pursuant to the Board's rules and regulations, the Regional Director investigated the company's objection and afforded it an opportunity to present evidence in support of it. In his report, the Regional Director recommended that the objection be overruled and that the union be certified as the exclusive bargaining agent in the unit. The Board denied the company's exceptions to this ruling and adopted the Regional Director's findings, conclusions, and recommendations. Shortly thereafter, the union requested a meeting with the company for the purpose of collective bargaining. The company advised the union that for the reasons above stated it was contesting the certification and would not bargain with it. This gave rise to the instant unfair labor practice charges which the company denied. Since the company raised no new issues and offered no newly discovered evidence, the Board granted the General Counsel's motion for summary judgment⁵ and issued an order directing the company to cease and desist from its refusal to bargain with the union.

The entire basis for the company's objection to the union's certification is found in the union's letter dated July 9. This letter contained a detailed discussion of the various fringe benefits offered by the union and also set forth a comparison of the wages being paid by the company and by an organized alleged competitor. It stated, in relevant part, that:

"another metal warehouse with whom we have a collective bargaining Agreement is presently paying its warehousemen and drivers much more.

                Per hour 5/1/71 5/1/72
                    Drivers        5.26     5.86
                    Warehousemen   3.98     4.43
                

Millard\'s drivers are paid $4.25 per hour. Millard\'s warehousemen are paid ? per hour (Millard hasn\'t published warehouse rates yet. Why?)."

The letter did not name the other warehouse, but, during his investigation, the Regional Director found that the alleged competitor was Industrial Service Center, Inc. of Cambridge, Massachusetts, and that the rates mentioned in the letter were taken from and accurately represented those in the agreement between Industrial and the union.⁶ The company responds that the letter was accurate only in a limited sense, and gave a substantially incorrect picture. Specifically, in giving the competitor's wage rate for warehousemen, the letter quoted only one rate, that for special highly skilled warehousemen, with no indication of the fact that there were two rates, or quoting the regular rate.

In point of fact, as the company demonstrated and the Regional Director found only three of its twenty warehousemen were sufficiently skilled so as to be qualified to receive the pay rates set forth in the letter. Thus, the company argued that the letter presented an unwarranted wage differential of approximately forty-two cents⁷ an hour to the great majority of its employees since, even if they had been working under the Industrial agreement, they would have fallen into lesser skilled categories and would not have been entitled to receive the wages quoted. In addition, the company contended, inter alia, that the letter did not provide an adequate basis by which the employees could evaluate the union's representations because the alleged competitor was not named.

In denying these objections, the Regional Director found that "the previous campaign references to wages and companies, when considered together with (the union's) letter objected to, were sufficiently explicit to give the electorate a fair opportunity to appraise the wage issue and to vote their preference concerning representation." He concluded that the "letter objected to accurately reflects the Industrial rates and that in all of the circumstances of this case, the alleged misrepresentations, if any, by the union are not so substantial as to be reasonably expected to have had a significant impact upon the election which the union won by an over 2-1 margin."

As we have recently had occasion to observe,

"Representative elections, challenged because of asserted pre-election misrepresentations, will not be lightly set aside. A certain degree of inaccuracy and ambiguity is recognized as indigenous to campaign propaganda. In order to warrant the setting aside of a representative election on this ground `the burden is on the objector ... to show it was `sufficiently likely\' that the employees were misled so `that it cannot be told whether they were or were not.\' Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 120 (1st Cir. 1967); N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456, 461, (1st Cir.1962). Since, in the first instance, this determination rests within the broad discretion of the Board, the Board\'s determination is to be set aside only for an abuse of discretion. (Citations omitted.)

"The Board will set aside an election `only where there has been a misrepresentation ... 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.\' Hollywood Ceramics Co., Inc., 140 NLRB 221, 224 (1962). All of these elements must be present before an election will be set aside. See, N.L.R.B. v. Cactus Drilling Corp., 455 F.2d 871, (5th Cir. 1972).... Misrepresentations have an insignificant impact when

(1) the employees possess independent knowledge with which they can evaluate the statements, Hollywood Ceramics, supra; see also, N.L.R.B. v. Maine Sugar Industries, Inc., 425 F.2d 942, 945 (1st Cir. 1970), or

(2) the employees have no reason to believe that the speaker had any special knowledge on which they should rely. N.L.R.B. v. A. G. Pollard Co., 393 F.2d 239, 242 (1st Cir. 1968); N.L.R.B. v. Southern Foods, Inc., 434 F.2d 717, 720 (5th Cir.1970)."

N.L.R.B. v. O. S. Walker Company, Inc., 469 F.2d 813 (1st Cir. 1972).

We do not depart from these criteria. We find, however, in applying them to the facts of the instant case, that the Board's order must be vacated and the certification set aside.

Because of the rather complicated findings of the Regional Director,...