NLRB v. OS Walker Company, Inc., No. 72-1181.

• Decision Date: 15 November 1972
• Docket Number: No. 72-1181.
• Citation: 469 F.2d 813
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O. S. WALKER COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 813 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O. S. WALKER COMPANY, INC., Respondent.

No. 72-1181.

United States Court of Appeals, First Circuit.

Argued September 8, 1972.

Decided November 15, 1972.

Joseph E. Mayer, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Jonathan G. Axelrod, Atty., Washington, D. C., were on brief, for petitioner.

Duane T. Sargisson, Worcester, Mass., with whom Warren C. Lane, Jr., James E. Wallace, Jr., and Bowditch, Gowetz & Lane, Worcester, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, McENTEE and HAMLEY,^* Circuit Judges.

HAMLEY, Circuit Judge.

The National Labor Relations Board has petitioned for enforcement of its unfair labor practice order issued against O. S. Walker Company, Inc. For the reasons stated below we will enforce the order.

The United Steelworkers of America, AFL-CIO, won a consent representation election involving the Company's production and maintenance employees at Worcester, Massachusetts. The vote was twenty-four to twenty, with three ballots challenged. The Company filed timely objections to the conduct of the election, which were rejected in a report by the Board's Acting Regional Director (Director). The Company then filed with the Board timely exceptions to the Director's report. While these exceptions were pending, the Company submitted to the Board supplementary evidence and asked for a reopening of the investigation and a hearing.

The Board thereafter issued its decision denying the request for a reopening of the investigation and hearing, rejecting the Company's exceptions, adopting the Director's findings and recommendations, and certifying the Union as the exclusive representative of the employees for the unit in question.

The Company refused to bargain with the Union and an unfair labor practice proceeding was commenced. Over the Company's objection, the Board granted the motion of its General Counsel for summary judgment and entered findings and conclusions of law determining that the Company's refusal to bargain with the Union constituted an unfair labor practice within the meaning of section 8 (a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158 (a) (5) and (1). The Board ordered the Company to cease and desist its refusal to bargain with the Union, and to post the usual notices. This enforcement proceeding was then instituted.

In resisting enforcement of the Board's order the Company relies upon contentions it had advanced before the Board. The first two of these pertain to assertedly material pre-election misrepresentations by the Union which influenced the employees to vote for Union representation. These asserted misrepresentations had to do with the Company's pension plan and its medical insurance program. All of these asserted misrepresentations were made at a Union meeting held on the night before the election, attended by from thirteen to seventeen of the approximately forty-seven employees eligible to vote.

According to the Director's report, the evidence before him showed that at this meeting a Union representative said that, under his interpretation of the pension plan, in order to be eligible for inclusion in the plan, an employee had to have attained his thirtieth birthday. The representative said that his understanding of the plan was based on his interpretation of an example given on page 11 of a Company booklet.

This was unquestionably an erroneous statement. The example on page 11 of the booklet deals only with a hypothetical employee who has attained his thirtieth birthday. There is no minimum age requirement for inclusion in the Company's pension plan.

The Director concluded, however, that the subject of the pension plan, which had been in effect among unit employees since 1953, was one about which the employees themselves could be expected to have as much knowledge as the Union, and as to which they could not have been expected to give any special credence to the Union's pronouncements. The Director recounted the extensive efforts the Company had made to acquaint employees with the details of the plan, including one such effort while the election campaign was in progress.

On this ground, the Director held that the misrepresentation concerning the necessity of attaining the age of thirty years in order to be eligible for inclusion in the pension plan did not warrant setting aside the election.

Another asserted misrepresentation concerning the pension plan, made at the Union meeting, was to the effect that Company employees with three years of service did not have any accrued pension credits. Apparently one Company witness testified before the Director that such a statement had been made.¹ However, another Company witness testified that the Union representative stated at the meeting that an employee "could" work for the Company for three years and have no credit under the plan. The Union representative testified that he stated at the meeting that, in order to be eligible for inclusion in the plan, depending on his date of hire, it was possible for an employee to have a waiting period of up to three years before being included in the plan.

The Director apparently accepted, as true, this latter version of what was said at the meeting, and upon analyzing the plan, determined that it was a substantially correct statement. There was an inaccuracy of not over one day. The Director concluded that, at most, this was a misrepresentation of the type which the Board and courts have found to be too insubstantial to warrant setting aside an election.

Concerning asserted misrepresentations having to do with the Company's medical insurance program, we note at the outset that any such misrepresentations were made, not by a Union representative, but by an enrollment representative of Massachusetts Blue Cross/Blue Shield.² For approximately ten years prior to December 20, 1970, the unit employees in question had been covered by a Blue Cross plan. Effective on that date, however, the Company canceled that coverage and instituted a new medical plan written by the Paul Revere Life Insurance Company. During his fifteen-minute talk at this meeting, the Blue Cross representative distributed a mimeographed leaflet comparing the Paul Revere and Blue Cross plans, and a one-page printed leaflet highlighting the coverage provided by the Blue Cross plan.³

The Company contends that the mimeographed leaflet contained at least eight substantial misrepresentations which in effect understated the benefits provided in the Paul Revere plan and overstated the benefits available under the Blue Cross plan. In the proceedings before the Director, the parties presented detailed documents prepared by the two insurance companies which tend to support or undermine, as the case may be, the Company's charge that this leaflet contained material misrepresentations.

The Director, however, did not undertake to determine the extent to which, if any, this leaflet contained misrepresentations.⁴ The Director deemed this unnecessary because of the considerable effort the Company had made, as recounted in the report, to acquaint the unit employees with the details of the coverage provided by the Paul Revere plan. The Director concluded that the employees were in a position to evaluate for themselves the written and oral statements made by the Blue Cross representative at the Union meeting referred to above. It was the Director's view that, under the circumstances, the employees "could not have been expected to lend any special credence, wholly without reservations, to the statements of . . . a representative of a rival insurance company."

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. See, N. L. R....