ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF ORDER OF NATIONAL LABOR RELATIONS BOARD (Case Nos.: 22-RC-5855 22-CA-5737)
Before: VAN DUSEN, ROSENN and WEIS, Circuit Judges.
An employer's challenge to a representation election conducted under the supervision of the National Labor Relations Board is the subject of this petition for review and cross-petition for enforcement. We conclude that charges of deliberate misstatements about the employer's earnings published by the union in the closing days of the campaign require affirmative action by the Board. Accordingly, the petition for review will be granted in that the Board's order that the company bargain with the union will be set aside and the Board's cross-petition for enforcement will be denied.
In September, 1973, the Aircraft Radio Company (ARC) and the International Union of Electrical Radio and Machine Workers (IUE) filed the customary N.L.R.B. consent election form, providing that objections to election procedures would be resolved by the Board's regional director.*fn1 The election was held on September 28, 1973 and resulted in a victory for the union by the narrow margin of 217 votes in its favor and 199 opposed. Sixteen challenged ballots were not counted.
Thereafter, the company raised a number of objections to the election including charges of misrepresentation by the union as to:
1. wages paid by ARC as compared with those paid in unionized plants;
2. pensions furnished by ARC in comparison with those at union plants;
3. the terms of a collective bargaining agreement at the nearby plant of the Industrial Timer Corporation;
4. the union initiation fee waiver.
After an investigation by the regional director, all of the objections were dismissed. In due course the Board issued a summary judgment against the company affirming the regional director's action.*fn2 Although the employer has presented a number of objections, we rely primarily on one of them in vacating the Board's action.
Aircraft Radio Company, located at Boonton, New Jersey, is the second smallest of seven operating divisions of the Cessna Aircraft Company which has its headquarters at Wichita, Kansas. ARC is engaged in the manufacture, distribution and sale of aviation communication and navigational equipment. It supplies its products to Cessna as well as to other competitive firms. ARC is conducted as an independent business; sales and profits are accounted for separately, and its wage agreements are independently negotiated. In fiscal year 1972, ARC had total sales of $11,000,000 and in 1971, $6,700,000, which resulted in net losses for each of those years. By contrast, Cessna is much larger and more profitable. Its sales for 1972 were $248,000,000 which resulted in profits of $13,500,000.
The union's campaign literature attributed Cessna's sales and profits to ARC. In a letter to the employees dated September 19, 1973, the union stated that ARC sales for 1972 were $248,421,000 ...