Ereno Lewis

National Labor Relations Board - Board Decisions

Apr 1, 1975

217 N.L.R.B. 239 (N.L.R.B. 1975)

ERENO LEWIS 239
Ereno Lewis and Local 542, International Union of
Operating Engineers , AFL-CIO, Petitioner. Case
4-RC-1 1061
April 1, 1975
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
- Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Acting Regional Di-
rector for Region 4 on July 24, 1974, an election by
secret ballot was conducted on August 16, 1974, under
his direction and supervision among the employees in
the appropriate unit. At the conclusion of the election,
the parties were furnished with a tally of ballots which
showed that there were approximately 14 eligible vot-
ers and 14 cast ballots, of which 7 were for, and 7
against, the Petitioner. Thereafter, the Petitioner filed
timely objections to conduct affecting the results of the
election, of which all but one were subsequently with-
drawn.
Pursuant to Section 102.69 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, the Acting Regional Director conducted an
investigation and, on September 27, 1974, issued and
duly served on the parties his Report and Recommen-
dations on Objection to Election attached-hereto in
pertinent part. In his report, the Acting Regional Di-
rector recommended that the objection be sustained
and a new election directed. Thereafter, the Employer
filed a timely exception to the Acting Regional Direc-
tor's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case 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 labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All operators, mechanics, helpers, and laborers,
who work on or with heavy construction equip-
ment of Ereno Lewis, Harrisburg, Pennsylvania,
but excluding all office clerical employees, guards,
and supervisors as defined in the Act.
5. The Board has considered the entire record in this
proceeding, including the Petitioner's objection, the
Acting Regional Director's report, the Employer's ex-
ception and brief, and the Petitioner's answering brief,
and hereby adopts the Acting Regional Director's find-
ings, conclusions, and recommendations only to the
extent consistent herewith.
The facts are not in dispute. On the morning of the
election, the Employer distributed to its employees a
leaflet on its letterhead, which stated:
The Company's information is that as of August
15, 1974, union dues in Local 542, International
Union of Operating Engineers AFL-CIO were
$9.00 per month. We understand that, in addition,
initiation fees are $104.00. If this is correct, the
enclosed "sample check" represents what your
pay check for this week would be if the same union
dues and initiation fees were deducted from your
earnings for this pay-week.
Further, union assessments are not deducted from
wages but must be paid directly to the Union from
your own pocket.
Thus, you can see that from this check how much
your pay is shrunk by union membership . . .
which membership, in your case, does not come
very cheap.
THIS IS SOMETHING TO THINK ABOUT'
(Your actual paycheck is stapled to this notice.)
At the same time a "sample check" was given each
employee, showing a deduction of $113.00 for "Union
ded." from a weekly gross of $200.
Although the above amount of monthly dues was
correctly reported, in fact, the Union's initiation fee is
only $60 rather than $104. However, the Petitioner's
constitution and bylaws require, in addition to the
initiation fee of $60, the payment of 3 months' dues
($27) and a death benefit fund contribution of $20 for
a total of $107; but this amount is payable over a 60-day
period from the date of joining the Union. On the basis
of these facts, the Acting Regional Director concluded
that the Employer's propaganda material substantially
misrepresented both the amount of the initiation fee
and the manner in which it must be paid in that the
leaflet gave no indication of a 60-day period for that
purpose. Accordingly, he recommended that the objec-
tion be sustained and a new election directed.
Members Jenkins and Kennedy adopt the Acting
Regional Director's recommendation that the election
217 NLRB No. 45
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be set aside. Member Kennedy finds that the Em-
ployer's statement that Petitioner's initiation fee was
$104 when in fact it was only $60 constituted a material
misrepresentation on a matter that the employees could
not evaluate and at a time which precluded an effective
reply. The Trane Company (Clarksville Manufacturing
Division), 137 NLRB 1506 (1962). Member Kennedy
does not believe that the misrepresentation is excused
because approximately the same figure can be reached
by adding the 3 months' dues (for which employees re-
ceive credits) and a death benefit contribution to the
$60 initiation fee for a total of $107.
Member Jenkins, although in agreement with the
Acting Regional Director's recommendation, does not
adopt his entire rationale. Contrary-to the Acting Re-
gional Director, Member Jenkins does not believe that
the Employer misstated the amount of Petitioner's
initiation fees. Although that fee was $60 rather than
$104, the Union required the simultaneous payment of
3 months' dues and a death benefit fund contribution
fora total of $107. Thus, the total payment required is,
in fact, $3 more than stated by the Employer. In these
circumstances, Member Jenkins does not find that the
Employer, by attributing the entire sum to payment of
the Petitioner's initiation fees, rather than identifying
the component amounts, engaged in conduct which
could mislead employees and interfere with their free
choice.
However, Member Jenkins agrees with the Acting
Regional Director's conclusion that the Employer's
statement, "If this is correct, the enclosed `sample
check' represents what your pay check for this week
would be if the same union dues and initiation fees were
deducted from your earnings for this pay-week" and
the "sample check" itself, reflecting a $113 deduction
for union dues and initiation fees, constituted a
material misrepresentation. For the Employer thereby
imparted to its employees the wholly erroneous impres-
sion that in the event of unionization the entire amount
of the Petitioner's initiation fees would be taken out of
one paycheck so as to reduce their earnings for that
week by more than 50 percent. As the Acting Regional
Director noted, the impact of a specimen payroll check
which graphically but improperly reduces an em-
ployee's weekly pay by more than half is such that
employees could only be struck by the fact that union
dues and initiation fees would account for so large a
deduction at one time. Furthermore, as indicated by
the Acting Regional Director, the Employer's distribu-
tion of the propaganda material on the morning of the
election effectively precluded the Petitioner from point,
ing out to employees that these fees are payable over a
60-day period. For all these reasons, Member Jenkins
agrees that the Employer's conduct overstepped the
bounds of legitimate electioneering and interfered with
the employees' freedom of choice.
Accordingly, we hereby sustain the Petitioner's ob-
jection and set aside the election, and we shall direct
that a second election be conducted.
[Direction of Second Election omitted from
publication.]'
MEMBER PENELLO, dissenting:
In the hope that my words will not fall on deaf ears,
I take this opportunity to urge once more that this
Board give Hollywood Ceramics a decent burial and
return to its earlier, intrinsically sounder policy of not
inquiring into the truth or falsity of the parties' cam-
paign statements.
"The repetition of a catchword," Justices Holmes
and Cardozo warned long ago, "can hold analysis in
fetters for fifty years and more."3 This case removes
all doubt that, after 13 years of Hollywood Ceramics,
"misrepresentation" has indeed become a substitute for
reasoned analysis.
It is true that the Hollywood Ceramics approach is of
long standing and its underlying basis, i.e., The
Gummed Products Company, 112 NLRB 1092 (1955),
is becoming hoary with age. But that does not mean
that the holdings of those cases are "engraved in stone"
or that they represent immutable law. On the contrary,
the Board's clear authority to overrule those holdings
has been recognized by the courts and the Board itself.
For example, the Fifth Circuit has stated in the follow-
ing emphatic language that the "laboratory conditions"
standard,' which Hollywood Ceramics is assertedly
promoting, is binding upon the Board and the courts
only until such time as the Board chooses to change
it:s
The Board, not the Courts, adopted as the meas-
ure of election fairness the "laboratory condi-
tions" standard . . . . This Court has previously
held that, where the Board has promulgated" a
standard governing conduct under the LMRA,
"(s)uch policies are controlling until the Board
announces a change and its reasons for the
change." [Footnotes and citations omitted.]"
16 The Board has been criticized for insisting on its ideal "laboratory
conditions" standard . The decision on which standard will best
effectuate the Act is a determination to be made initially by the Board.
But until it indicates otherwise , it is bound, in election objection cases,
by its current "laboratory conditions" test
1 [Excelsior In omitted from publication]
2 Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962)
3 Cardozo, "Mr Justice Holmes," 44 Harv. L. Rev. 682, 689 (1931).
4 See General Shoe Corporation, 77 NLRB 124 (1948).
5 Home Town Foods, Inc, d/b/a Foremost Dairies of the South v.
N.L.R B. 416 F 2d 392, 399 (C.A 5, 1969).
ERENO LEWIS
And the Board has, in the past, modified its approach
and application of analogous rules for the conduct of
elections.'
Most significantly, the United States Supreme Court
has long recognized that it is the Board's function to
establish policies and procedures to safeguard the con-
duct of representation elections' and this would neces-
sarily include the authority to revise or modify princi-
ples previously adopted. The Court's recent decision in
N.L.R.B. v. J. Weingarten, Ina, 420 U.S. 251 (1975),
lends further support to this view. In Weingarten, the
Court held that the Board had the authority to overrule
its prior decisions interpreting Section 7 of the Act and,
in so holding, the Court stated that stare decisis plays
a more limited role in the administrative process, as
compared to the judicial process:'
We agree that its earlier precedents do not im-
pair the validity of the Board's construction ... .
The use by an administrative agency of the evolu-
tional approach is particularly fitting. To hold that
the Board's earlier decisions froze the develop-
ment of this important aspect of the national labor
law would misconceive the nature of administra-
tive decision making. "`Cumulative experience'
begets understanding and insight by which judg-
ments . . . are validated or qualified or in-
validated. The constant process of trial and error,
on a wider and fuller scale than a single adversary
litigation permits, differentiates perhaps more
than anything else the administrative from the
judicial process." [Citations omitted.]
Although Weingarten involved a change in the Board's
interpretation of the statute, the Court's comments are
at least as applicable, if not more so, to a change in the
Board's practices and procedures relating to the super-
vision of campaign and election conduct inasmuch as
those procedures are purely administrative in nature
and "not in fulfillment of a direct statutory command
i.9
In my separate opinion in Medical Ancillary
Services,` I set forth my own views concerning the
need for the Board to exercise its authority and revert
to its pre-Gummed Products holdings that elections
6 See,, e g., NVF Company, Hartwell Division, 210 NLRB 663 (1974)
(Members Fanning and Jenkins dissenting but not on the basis of lack of
authority), modifying the interpretation of Peoples Drug Stores, Inc. and
Peoples Service Drug Stores, 119 NLRB 634 (1957)
7 N.LR B. v A J. Tower Company, 329 U.S. 324 (1946).
B 420 U S. at 265
9 Modine Manufacturing Company, 203 NLRB 527 (1973), enfd 500
F.2d 914 (C.A. 8, 1974). This view of the Board's function under Sec 9 has
been endorsed by the courts. XL R.B. v Olson Bodies, Inc., 420 F.2d 1187,
1189 (C.A. 2, 1970), cert. denied 401 U S 954 (1971). "The conduct of
representation elections is the very archetype of a purely administrative
function, with no quasi about it, concerning which courts should not inter-
fere save for the most glaring discrimination or abuse "
10 Medical Ancillary Services, Inc., 212 NLRB 582 (1974)
241
should be set aside only, upon a showing of deliberate
deception which renders the voters unable to recognize
the campaign propaganda for what it is. In that opin-
ion, I also cited and quoted at considerable length from
certain scholars of the subject who have expressed simi-
lar views." Recently Judge Feinberg of the Second
Circuit, in a dissenting opinion,"Z added his voice to
those who are critical of the current approach of the
Board and the courts. He dissented there because, in his
view, the court erred, inter alia, in "forget[ting] that a
representation election, like any experiment in derlioc-
racy, is conducted in the hurly-burly of the real world,
where puffing, ambiguity and rhetoric occur as part of
the election process and are routinely discounted" and
"[b]ecause the majority opinion unnecessarily under-
mines the finality of representation elections and is
based upon unrealistic assumptions regarding the effect
of a single oral statement by a union organizer. . . ."
Judge Feinberg, noting that "union organizers on the
stump, under the pressures of time, election fervor and
strongly held economic views, characteristically do not
choose their words with the care of judges in their
chambers," concluded as follows:13
The union or non-union status of a proposed bar-
gaining unit should not be subjected to protracted
litigation before the Board and in the courts be-
cause of a single oral statement, made in the give-
and-take of an organizational meeting, apparently
not deliberately false, and misleading only when
one postulates a very low level of employee eco-
nomic sophistication.
Judge Feinberg's opinion also cited recent studies
which found that campaign propaganda has little effect
on election results and that voter choices are deter-
mined largely by the degree of one's satisfaction with
employment conditions and general attitude toward
11 Id at fn 22 and related text.
12 Henderson Trumbull Supply Corporation v. N.LR.B., 501 F.2d 1224,
1231, 1233 (CA 2, 1974)
13 Similarly, despite the adoption of a "laboratory conditions" standard,
the Board has long recognized that preelection conduct must be evaluated
in the context of the realities of industrial life See, e g , Owens-Corning
Fiberglas Corporation, 179 NLRB 219, 223 (1969), in which a'panel of the
Board consisting of former Chairman McCulloch and Members Fanning
and Jenkins stated:
Although attempting to establish ideal conditions insofar as possible,
we acknowledge that actual facts must be considered in light of realistic
standards of human conduct, and that "elections must be appraised
realistically and practically, and should not be judged agamst theoreti-
cally ideal, but nevertheless artificial, standards." In considering stand-
ards of human conduct, "we are not unmindful of the fact that the
`laboratory' for election purposes is usually an industrial plant where
vigorous campaigning and discussion normally take place, and where
isolated deviations from the above-mentioned standard will sometimes
arise, notwithstanding the best directed effort to prevent their occur-
rence " [Footnotes and citations omitted.]
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions as shaped by previous work exprience and the
union status of relatives and close friends.14 The
Board's continued refusal to recognize these studies,
and the implications they hold for Board policy in this
area, is a prime example of mindless repetition of the
"misrepresentation" catchword where logic would lead
to a different result.
Turning to the instant case, one is immediately
struck by the fact that there is no majority opinion,
only a "majority result." For, my colleagues hold only
that the election must be set aside and are unable to
agree on exactly which of two statements misled the
employees. I find, for the reasons stated below, that
neither statement is objectionable under the Hollywood
Ceramics rule. The net result in regard to each state-
ment alleged to be a "misrepresentation" is a holding
by different majorities of this panel that it could not
have interfered with the employees' free choice. Thus,
Hollywood Ceramics has produced the ultimate in ab-
surd conclusions-setting an election aside in the ab-
sence of any substantial misrepresentation. "Analysis"
is not merely in fetters; in this case it has been mortally
wounded.
Examination of the varying rationales of my col-
leagues demonstrates the invalidity of the conclusion
that the Employer's propaganda contained the kind of
misrepresentation condemned by the Board in Holly-
wood Ceramics. The Acting Regional Director appears
to have concluded that the Employer's preelection
propaganda contained two misrepresentations; first,
that it substantially misstated the Petitioner's initiation
fee, which is $60 not $104 as reported by the Employer,
and second, that it failed to inform employees that they
had 60 days within which to pay whatever sum was
due. Member Kennedy concurs only in the finding that
the Employer's initiation fee statement constituted a
material misrepresentation. Unlike Member Kennedy,
however, Member Jenkings states that he does not rely
on the first "misrepresentation" but does find that the
failure to set forth the 60-day period warrants setting
aside the election.
I must agree with Member Jenkins as to the first
finding of the Acting Regional Director. As Member
Jenkins convincingly points out, the Employer actually
understated by $3 the total payment required of a new
member, because the Petitioner's constitution and
bylaws also require the simultaneous payment of 3
months' dues ($27) and a death benefit contribution of
$20, for a total of $107. As Board Members, our task
would be greatly simplified, and as attorneys we would
all be happier, if, instead of stating that "we understand
that . . . initiation fees are $104," the Employer had
said "we understand that the Union's constitution and
14 E g, Brotslaw, "Attitude of Retail Workers Toward Union Organiza-
tion," 18 Lab. L. J. 149 (1967)
bylaws require the payment of the sum of $107 by new
members, said sum consisting of an initiation fee ($60),
3 months' dues ($27), and a death benefit contribution
($20)." However, "such ivory tower hopes to not com-
port with the realities ."" To hold, as does Member
Kennedy, that this election must be run anew because
the Employer merely stated the total fees required of a
new union member, instead of identifying the compo-
nent parts of the amount to be paid, is to demand
"absolute precision of statement" which even the
Board, in Hollywood Ceramics, recognized as being nei-
ther "attainable in an election campaign, nor . . . ex-
pected by the employees. ,16
Inasmuch as Member Jenkins and I agree there was
no misrepresentation as to amount, the only ground for
setting this election aside that remains is the Em-
ployer's failure to indicate that the required fees were
payable over a 60-day period. But, only Member Jen-
kins relies on this basis and it is indeed a slender, tenu-
ous one , at best. 17
Although the Employer did not specifically assert
that the required payments would in fact have to be
deducted at one time, it did distribute the weekly wages
in two checks, one a "sample check" showing a deduc-
tion for "Union ded.," and state in the accompanying
leaflet:
If this [amount of $104] is correct, the enclosed
"sample check" represents what your. pay check
for this week would be if the same union dues and
initiation fees were deducted from your earnings
for this pay-week.
As I read this sentence, the Employer at no time said
or implied that the entire sum must be paid at one time.
But even if it did so, to conclude that this requires that
the election be set aside, one must assume that the
employees, could not construe this statement for what
it was, an attempt to bring forcibly to the employees'
attention the total amount they would be required to
pay if they joined the Union. And this in turn requires
the evaluation of employees' intelligence and ability to
understand the English language as exceedingly low.
Further, Member Jenkins leaps from the finding that
15 -(Dissenting opinion in National Mobile Homes, a division of National
Homes Corporation, t/a Sportscraft Homes, 186 NLRB 891, 892 (1970).
16 140 NLRB at 223 Inasmuch as the Employer did not falsely represent
union membership as being more costly than it actually is, The Trane Com-
pany (Clarksville Manufacturing Division), 137 NLRB 1506 (1962), on
which the Acting Regional Director and Member Kennedy rely, is clearly
inapposite. I note in passing that the plurality opinion in that case (one
Member agreed with the results but found it unnecessary to reach the issue
in question and two Members dissented) has been subject to severe criti-
cism See Williams , Janus , and Huhn, "NLRB Regulation of Election Con-
duct," at pp 30-32, Industrial Research Unit of the Wharton School, Uni-
versity of Pennsylvania (1974), Bok, "The Regulation of Campaign Tactics
in Representation Elections Under the National Labor Relations Act," 78
Harv L Rev 38, 86, 90 (1964)
17 In fact, Member Jenkins characterizes this only as creating an "errone-
ous impression "
ERENO LEWIS 243
this statement created an "erroneous impression" or
was a "misrepresentation" to the conclusion that
the election must be set aside," without any
evaluation19 as to whether or why the alleged misre-
presentation is "likely to have had a real impact on the
election"" and with no indication that this subject
had been an an issue in the campaign. Finally, under
Hollywood Ceramics the Board considers as a factor the
matter of "whether the party making the statement
possesses intimate knowledge of the subject matter so
that the employees sought to be persuaded may be
expected to attach added significance to its
assertion."" But here, contrary to the Acting Re-
gional Director's rationale which Member Jenkins
adopts, it seems manifest that the employees would
realize than the Employer was not the authoritative
source on such matters as the time allowed for payment
of Petitioner's fees. This appears even more likely from
the fact that the Employer used such phrases as "the
Company's information," "we understand," and "if
this is correct," which further served to put the em-
ployees on notice that the Employer did not possess
intimate knowledge of the subject. Therefore, it is in-
conceivable to me that the employees would attach
much, if any, weight to this and I cannot agree that it
had the significance which Member Jenkins attaches to
it.
To conclude either as a matter of principle or on the
basis of the facts that either of the statements contained
in the Employer's propaganda material was reasonably
likely to have swayed the employees in casting their
ballots in the election is, to me, beyond all reason. It is
entirely inconsistent with the views of the scholars that
voters in representation election, like political
election,22 cast their ballots on the basis of a wide var-
iety of factors, including both rational and emotional
18 In this connection, it is worthwhile to note Professor Bok's admonition
that, "as a general rule, it will be difficult to assert with any confidence that
an election has been won or lost on the basis of remarks that are ambiguous
rather than plainly inaccurate Statements that are unclear are unlikely to
make a vivid impression on the employee, surrounded as he is by a barrage
of assertions from both sides. And those that do interpret such statements
in a misleading fashion may well be just the employees, referred to by voting
analysts, who are only grasping for reasons to support a decision already
reached on other grounds " Bok, supra at 91
19 See Aaron, "Labor Relations Law" in "Challenges to Collective Bar-
gaining," 113, 128 (L Ulman ed. 1967) "As Professor Bok and others have
so convincingly demonstrated, the Board has indulged in some uncommonly
silly and completely unverified assumptions that various forms of speech or
conduct will or will not interfere with the employee's free choice of bargain-
ing agent."
20 Hollywood Ceramics Company, Inc, 140 NLRB at 224.
21 Id. at 224, fn 10 The courts of appeals have also interpreted Hollywood
Ceramics as embodying a special knowledge test See, e.g, N.LR B. v
Millard Metal Service Center, Inc., 472 F 2d 647 (C.A. 1, 1973); Bausch &
Lomb Incorporated v N.LR B 451 F.2d 873 (C A 2,197 1), N.L.R B. v
Southern Foods, Inc, 434 F 2d 717 (C A. 5, 1970); United Steelworkers of
America, AFL-CIO v NL R.B., 393 F 2d 661 (C.A D.C, 1968)
22 This analogy between representation elections and political elections
was drawn by the United States Supreme Court as long ago as 1946 in
NL R.B. v A J Tower Company, supra.
considerations and particularly their everyday experi-
ences in the real world. And, in fact, such a conclusion
is contrary to the holdings of two different majorities
of this panel. Nevertheless, this election is set aside.
But aside from the anomalous result in the instant
case, I urge again that the Board reconsider and over-
rule Hollywood Ceramics. Experience in application of
that case has revealed it is not employees who need
rescue from their gullibility; it is the Board which needs
rescue from its own misguided paternalism. Accord-
ingly, I would reverse the Acting Regional Director's
conclusion and certify the results of this election.
APPENDIX
The remaining Objection is based on the undisputed
fact that on the morning of the election, Employer
distributed to employees a leaflet (Exhibit A) setting
forth its understanding of the Union' s dues ($9.00 per
month) and initiation fees ($104.00). At the same time
a "sample check"-" (Exhibit B)-was given each employee,
showing a deduction of $113.00 for "Union ded." from
a weekly gross of $200.00.
Investigation discloses that although the amount of
monthly dues was correctly reported, the Union's
initiation fee is only $60.00 rather than $104.00. Peti-
tioner's Constitution and By-Laws require the payment
of the initiation fee ($60.00), three months dues ($27.-
00) and a death benefit fund payment of $20.00 for a
total of $107.00. However, this amount is payable over
a 60 day period from the date of joining the Union and
is paid directly by the employee rather than by payroll
deduction. Thus, in addition to misstating the initiation
fee quite substantially, Employer's statement, "If this is
correct, the enclosed `sample check' represents what
your pay check for this week would be if the same
union dues and initiation fees were deducted from your
earnings for this pay-week" constitutes a major misre-
presentation because there is no indication of a 60 day
period in which to make the required payments. In-
stead, employees can only be struck by the fact that
more than 50% of a week' s earnings is to be deducted
from their pay for union dues and initiation fees.
Employer justifies its position by a reliance on the
Board's rationale in Associated Lerner Shops, 207
NLRB No. 18, contending that there were no factual
misrepresentations since its statements were preceded
by "We understand" and "If this is correct" thus in-
dicating the possibility of inaccuracy which employees
could clearly evaluate as campaign propaganda.
I find this reasoning unpersuasive. In Associated
Lerner, the Board's dismissal was based on the fact that
the objected-to literature clearly stated that the wages
and benefits were contract proposals and, "Further-
more, each fringe benefit listed is followed by the com-
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that it is to be paid or will be put into effect, thus
indicating additionally that these were proposals rather
than representations as to the Atlanta wage rate." Ac-
cordingly , the Board concluded that employees would
reasonably have construed the letter only as campaign
propaganda . Here , Employer 's prefacing phrases do
not lessen the impact of a specimen check which graph-
ically but improperly reduces an employee 's weekly
pay by more than 50%. Thus, I find Associated
Lerner inapposite to the instant circumstances and the
same conclusion cannot be drawn thereform.
In The Trane Company, 137 NLRB 1506, the Board
set aside an election where the Employer on the eve of
the election incorrectly claimed that the Union's
monthly dues were $5.00 instead of $4.00 stating, "If
the Employer had publicized these facts in the form
used several days before the election , the Petitioner
could have correctly pointed out to employees that its
dues obligation was $4 and $5 per month . . . We do
not believe that employees were in a position correctly
to have evaluated Employer 's misstatements . We hold
that regardless of whether the misstatements were will-
ful or inadvertent , their inclusion in propaganda
material distributed to employees by supervisors im-
mediately before the election seriously impeded a deter-
mination of the employees ' choice of a collective-bar-
gaining representative ." Also see National Mobile
Homes, 186 NLRB 891, fn . 3, and cases cited therein.
It is clear from the Tally of Ballots that a shift in one
vote would have changed the outcome of the election.
In view of the misrepresentations made by Employer in
Exhibits "A" and "B" and the timing thereof, and in
view of established Board precedent , I find and con-
clude that Employer's conduct exceeded the limits of
legitimate propaganda and lowered the standards of
campaigning to a level which impaired the free and
untrammeled expression of choice by the employees
herein . Accordingly , I find and conclude that the Ob-
jection raises substantial and material issues with re-
spect to the election and I shall recommend it be sus-
tained and a new election directed.