NLRB v. Trancoa Chemical Corporation, 5942.

• Decision Date: 11 June 1962
• Docket Number: No. 5942.,5942.
• Citation: 303 F.2d 456
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANCOA CHEMICAL CORPORATION, Respondent.
• Court: U.S. Court of Appeals — First Circuit

303 F.2d 456 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANCOA CHEMICAL CORPORATION, Respondent.

No. 5942.

United States Court of Appeals First Circuit.

Heard May 3, 1962.

Decided June 11, 1962.

Allison W. Brown, Jr., Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Washington, D. C., was on brief, for petitioner.

Vernon C. Stoneman, Boston, Mass., with whom Alan S. Miller, Newton Center, Mass., and Stoneman & Chandler, Boston, Mass., were on brief, for respondent.

Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.

ALDRICH, Circuit Judge.

This petition for enforcement of an order to bargain raises a number of questions with regard to misleading union literature prior to an election and to the actions of the Board in handling the employer's objections thereafter. It raises them in sharp focus. In its reply brief the Board states that the procedure followed in "this case has been developed out of long years' experience in handling proceedings of this type," which we take to mean that we have before us the Board's general views and not simply a special situation.

On April 6, 1959, at the request of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, known as the IUE, a representation election was scheduled at the plant of respondent Trancoa Chemical Corporation. The union's campaign had been proceeding since December 1958. On April 5 it distributed a leaflet consisting of a single sheet, printed on both sides, and folded once. The first of the resulting four pages proclaimed that voting for the union would mean "more money in your paycheck;" indicated that Trancoa was not "paying wages and benefits comparable to other workers in our industry;" and concluded, "we workers can't find out the truth * * * but IUE has the facts and figures and we can see for ourselves! ! ! SEE INSIDE." The two inside pages contained alleged facts and figures about three contracts the union had allegedly negotiated. The back page consisted of generalizations, one half of which concerned the dangers the employees were said to face from radioactive materials and a poison, and against which the union offered to protect them. The following day, immediately before the election, the company published a partial reply.

The balloting disclosed 85 in favor of the union, 47 against and 10 challenged or void.¹ No question arises as to the tally. The company filed objections to the election on the basis of misrepresentations in the leaflet. The Regional Director appointed an investigator who made an ex parte investigation, following which he overruled the objections. The company filed detailed objections to his report, but the Board upheld the director and certified the election. The company refused to accept the union and bargain with it, from which has come the present unfair labor practice charge. At the hearing on this charge the trial examiner, upon specific instructions from the Board, ruled that he could accept only evidence discovered since the company's original objections. He found against the company. His action was confirmed by the Board, which now seeks a decree enforcing its order that the company bargain.

Respondent raises the following issues: (1) The Board's alleged view that misrepresentations are to be overlooked if, in its opinion, they were not so misleading as necessarily to "preclude the election results from reflecting the true desires of the employees." (2) The Board's refusal to consider "exaggerations, incomplete disclosures or half truths," or anything not amounting to "forgery or other campaign trickery." (3) The conclusion that misrepresentations may be disregarded if the company has had an opportunity to dispute them. (4) The refusal, in the absence of proof of "arbitrary and capricious" action in connection with the certification, to reconsider at the unfair labor practice hearing any matter previously decided, whether correctly or not.

The underlying question is how far the "facts and figures" supplied in the union's leaflet were materially untrue. The company, apparently failing to realize the negative effect of pressing in-consequentialities, has over-extended all stages of the proceeding. Campaign material is not to be subjected to an electron microscope. At the same time we are not persuaded by the Board's view that the effect of even major misrepresentations may be diminished if, in the total picture, they are few in number. It is particularly unsound where, as in the case of the Monsanto contract here, some of the other misstatements, although not substantial in themselves are at least of some consequence. Many a girl has been seduced one step at a time.²

Respondent's first major complaint concerns the second, or Knolls Atomic Power Laboratory contract. The published grades and wage rates were conspicuously stated to be for "IUE Members Doing Similar Work," adding, in connection with insurance benefits, "and they don't have our hazardous conditions." The union omitted, however, the word "Atomic" from the employer's title, and omitted the special letters designating the local involved as atomic-working. This was scarcely inadvertent. Without the omissions its remark about less hazardous conditions would have been demonstrably false. In fact, Knolls' conditions were not less hazardous, but more so. We are surprised at the Board's suggestion that this is not a matter of moment. In addition, the company complains that the union advertised the Knolls' contract as providing piecework pay "upward to $4.00 and better per hour" and a "Severance Pay Plan." The record does not permit us to say whether or not severance pay which was provided only in case of a total shutdown of the plant is within the commonly understood meaning of a "severance pay plan," but we must agree with the company that $4.00 for pieceworkers when that could be achieved only during premium pay periods was highly misleading. This seems a good example of a "half truth" which the Board feels it is appropriate to disregard.³

The union's third alleged contract was with Metal Hydrides. The company makes much of the fact that the Metal Hydrides plant shut down before the contract went into effect and that the union failed to disclose this. The relevancy of the contract was the fact that the union had negotiated it. This was in no wise affected by the further fact that the plant closed because of loss of its government business due to a change in government requirements. The company's complaint that no employee ever actually received these wages would have been irrelevant to the union's having negotiated the contract except for one circumstance, not discovered by respondent until after certification. The total agreement with Metal Hydrides was that the wages and benefits advertised in the union's leaflet would be effective only if the company continued in special government work, but that if it engaged in commercial work new terms would be negotiated. The announced identity between Metal Hydrides and Trancoa was thus broken; precisely where it occurred there was no contract. We agree with the Board that the union did not have to parade its poor agreements along with its good ones. But it was a manifest misrepresentation to indicate that it had achieved a similar contract when there was such a pertinent exception.⁴

The union further advertised that its Metal Hydrides contract contained "Pension and severance pay plan Fully paid for by company." Even on the assumption that the contract was in full force and effect these particular statements were pure invention. No such plans had been negotiated or offered, whether paid for by the company or otherwise. It must be obvious that this falsification reflected on every other advertised term of the Metal Hydrides agreement. Hourly rates with a pension, and without, are different matters.

Finally, the last page of the leaflet was devoted to the union's assertion that it was planning for the future and for its members' protection. Prominent mention was made of the growing use of radioactive materials. "These materials can be very dangerous, but the danger can't be seen or felt. Are radioactive materials being used in your plant? If so, have you been told about it? And what kind of safety measures have been taken?" After further development of this none too veiled insinuation, entirely unjustified in fact, the leaflet stated, "Not long ago beryllium poisioning claimed the lives of many workers in this industry and in our plant." The inclusion of respondent's plant was completely false.

This is a sorry record. Of the three contracts advertised, the first was at least considerably exaggerated; the benefits of the second were paraded under the general assertion that the working conditions were less hazardous when actually they were more so, and at least one benefit was substantially...