Thiokol Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1973

202 N.L.R.B. 434 (N.L.R.B. 1973)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thiokol Chemical Corporation, Hall-Way Plant and
Sheet Metal Workers International Association,
Local Union No. 60, AFL-CIO, Petitioner. Case
19-RC-6150
March 15, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was
conducted among the employees in the stipulated
unit described below. The tally of ballots furnished
the parties showed that of approximately 35 eligible
voters, 34 cast valid ballots, of which 10 were for the
Petitioner, and 23 against. There was one challenged
ballot. Thereafter, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on September 11,
1972, issued and served on the parties his Report on
Objections, recommending that the Petitioner's
objections be sustained and that the election held on
May 18, 1972, be set aside, and that a direction of
second election issue. Thereafter, the Employer filed
timely exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the
following employees constitute an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees of the
Employer at its South Yellowstone and Sunnyside
Road, Idaho Falls, Idaho plant, including the
time and inventory clerk and the order and
material clerk, excluding office clericals, profes-
sional employees and supervisors as defined in
the Act.
5. The Petitioner's objection relates solely to a
document mailed by the' Employer to the unit
employees on May 9, 1972, in which the Employer
reproduced the official seal of the Board and certain
portions of a Board publication entitled "A Lay-
man's Guide to Basic Law Under the National Labor
Relations Act" (1962 edition). The Employer on the
same date also mailed to all unit employees a 2-page
letter together with an enclosure entitled "Here's the
Real Story About Strikes" and a second enclosure
entitled "Get the Real Facts." On the "Layman's
Guide" the Employer added "Here's What the U.S.
Govt. Has to Say." The Employer added at the
bottom "Thiokol-Hall," thus appropriating an offi-
cial Board document for partisan purposes.
We agree with the Regional Director that the
Board should not and cannot allow its. official
documents which are designed to provide complete
and unbiased information to employees, employers,
and the public to be appropriated by any party in a
partisan manner. Here the Employer used the
outdated 1962 Board document to misstate the
presently existing law as to the rights of economic
strikers. Thus, under the cover of implied Board
sanction, the Employer misled its employees by
creating a false and misleading view as to the
employees' reinstatement rights in the event of an
economic strike. This action we believe was a
perversion of the purposes of this document and
operated to compromise the neutrality of the Board.
The gravamen of the Employer's objectionable
conduct as to the misuse of the Board's 1962
document was that it chose to reprint the outdated
1962 document rather than the 1970 document which
accurately expresses the current state of the law as to
the reemployment rights of economic strikers. We
think the Chairman's reliance on . the Union's
"opportunity to correct" the misrepresentation is
misplaced. It is questionable whether any partisan in
a campaign can credibly and effectively correct a
misstatement, buttressed by official documents,
about the legal principles applied by the public
agency administering the statute. In any event, we
deem it more salutary not to attempt any such
evaluation.
Accordingly, the Board has considered the Peti-
tioner's objection, the Regional Director's report,
and the Employer's exception and, for the reasons
stated above, adopts the Regional Director's find-
ings, conclusions, and recommendations.
We do not agree with our dissenting colleague that
our decision herein constitutes per se grounds for
setting aside the election because of the Employer's
use of outdated Board material. In this case, as in all
previous cases involving the misuse of Board docu-
ments or materials, the alleged misuse has been
202 NLRB No. 57
THIOKOL CHEMICAL CORP.
weighed together with all other relevant facts as to
the possible impact upon the rights of employees to a
free and untrammeled election. Nor do we agree with
our dissenting colleague that "the action complained
of herein was, at most, a misrepresentation." The
Employer in its campaign laid great stress on the
possibility of strikes and that in the event of a strike
"its business would go to its competitors." Thus, the
employees' reemployment rights in the event of a
strike were an important issue during the campaign.
The Employer's use of the 1962 document in this
context served to reinforce its campaign theme that
in the event of an economic strike they would lose
their reemployment rights, a result sanctioned by the
United States Government. In the circumstances of
this case, we are compelled to find that the
Employer's misuse of the document compels us to
direct that a second election be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommendation of the
Regional Director that the election held on May 18,
1972, be set aside and hereby orders that the election
conducted on May 18, 1972, be, and it hereby is, set
aside and that Case 19-RC-6105 be, and it hereby is,
remanded to the Regional Director for Region 19 for
the purpose of conducting a new election at such
time as he deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CHAIRMAN MILLER, dissenting:
I cannot agree that the Employer's use of the
outdated excerpt from "Layman's Guide to Basic
Law Under the National Labor Relations Act" (1962
1 See Rebmar, Inc., 173 NLRB 1434.
2 As the Regional Director found, accompanying the Employer 's May 9,
1972, letter (and the disputed portion of the 1962 "Layman's Guide") was a
leaflet stating that "Strikers ... do not have a right to their job after the
strike if they have been permanetly replaced , and their replacements are still
working." (Emphasis supplied .] The Employer also asserts that in a speech
435
edition) constituted per se grounds for setting aside
the election.
This is not a case where a party has added
extraneous propaganda to a Board document under
conditions tending to suggest either directly or
indirectly to the voters that this Government Agency
endorses a particular choice. Cf. Allied Electric
Products, Inc., 109 NLRB 1270. Instead, we are here
concerned with an employer's action in using
outdated Board material so as, it is alleged, to
understate the rights employees would have as
replaced economic strikers.
It is true that "the Board has a responsibility to
inform employees fully of their rights and privileges
under the Act and to conduct elections in the
atmosphere conducive to a determination of the
uninhibited preference of employees." I To that end,
the Board is called upon from time to time to take
measures to assure that its efforts in this regard are
not subject to improper interference. This is not to
say, however, that an election should be set aside in
every case involving a misuse of Board documents or
literature.
The action complained of herein was, at most, a
misrepresentation. It did not involve a major
departure from the truth 2 and occurred some 9 days
before the election. Thus the Union had ample
opportunity to correct any misstatement of the law
which may have been involved. Furthermore, it is
highly speculative, in my view, for this Board to
conclude that a failure by the Employer to make
clear a refinement in the governing law as to the
rights of replaced strikers in some hypothetical strike
which might occur at some future date had such a
tendency to disturb the election results here as to
justify our setting aside the election.
In these circumstances, I would certify the results
of the election.
the day before the election , the Employer read to the employees relevant
portions of the newer 1970 "Layman 's Guide ." Thus , it is at least arguable
that the record as a whole will not support a finding that the Board
materials were used in such a way as to convey a misrepresentation of the
state of the law.