ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD NLRB No. 4-CA-14582
Before: GIBBONS, BECKER, and ROSENN
The National Labor Relations Board petitions for enforcement of its order directing Rhone-Poulenc, Inc., the employer, to bargain with the Oil, Chemical, and Atomic Workers International Union, AFL-CIO, Local 8-948, the union. The employer concedes that it refused to bargain with the union after the Board certified it as the employees' bargaining representative. It contends, however, that the Board should not have certified the union in light of irregularities in the Board-supervised election. We reject this contention and enforce the Board's order.
On December 21, 1983 the employees at the employer's Lakewood. New Jersey plant participated in an election pursuant to a stipulated election agreement. Of forty-five ballots cast, twenty-four favored the union, and twenty opposed it; one challenged ballot was discounted. Within the five-day period specified by 29 C.F.R. § 102.69(a) (1985) the employer filed with the Regional Director a letter setting forth three objections to union conduct that allegedly affected the outcome of the election. The Regional Director advised the employer that within five days of the filing of the objections it had to furnish any supporting evidence it had available to it at that time. The employer subsequently submitted four employee affidavits that not only bore on the original objections but that also included new allegations about union threats and promises.
The Regional Director submitted a report to the Board recommending that it reject the three timely objections and certify the union as the bargaining representative. He refused to investigate the allegations first raised in the affidavits because the employer had not presented them within five days of the election. The employer then filed a timely exception to the Regional Director's report, challenging his disposition of two of the three timely objections as well as his refusal to investigate the additional allegations. A divided three-member panel of the Board adopted the Regional Director's report and recommendations and certified the union.
In order to obtain judicial review to the employer refused to bargain.*fn1 The General Counsel filed an unfair labor practice charge, and the Board, with one member dissenting, granted his motion for summary judgment. See Rhone-Poulenc, Inc., 274 NLRB No. 129, 118 L.R.R.M. (BNA) 1494, 1494 (1985).
We first consider the employer's exception to the Regional Director's rejection of two of its timely objections. The employer objected first that representatives of the union "knowingly misrepresented to the eligible voters within the unit that the 'bylaws' of the National Labor Relations Board prohibit an employer from reducing any existing wage and benefits once a union wins the right to represent employees." Joint Appendix at 1. It also objected that the union, via two letter, misled the eligible voters into thinking that the Board was not absolutely neutral in the election. In the first letter Henry Santos, the president of the union, wrote. "Eveything [sic] I have stated here can be verified through Dawn Miller, she is the representative assigned to this election. She works for the Labor Board in Philadelphia." Joint Appendix at 4. And in the second letter he stated,
I spoke to Ms. Dawn Miller of the National Labor Board and told her of the company's threat of loss of benefits, she admits it is against the law and advises me to file a charge against the company with the N.L.R.B. I will discuss this with all of you on the 17th.
Treating the two objections as presenting the single issue of whether a misrepresentation by an election participant invalidates an election outcome and assuming that Mr. Santos's statements reached the eligible voters, the Regional Director ruled that the misrepresentations did not justify setting aside the election. In so ruling the Regional Director applied the rule, announced, announced in Midland National Life Insurance Co., 263 N.L.R.B. 127, 131 (1982), that the Board would not probe the truth of falsity of campaign statements recognizable as originating with one of the partisans in an election.
The employer contends that the Midland rule should not apply in cases involving partisan misrepresentations about Board actions or positions. In so contending it asks us to ignore established Board policy. In Affiliated Midwest Hospital, Inc. d/b/a Riveredge Hospital, 264 N.L.R.B. 1094 (1982), the Board, overruling its holding in Formco, Inc., 233 N.L.R.B. 61 (1977), held that, for purposes of assessing the validity of election results, it would treat partisan misrepresentations concerning Board actions or positions no differently than it treats other misrepresentations. See 264 N.L.R.B at 1094-95; see also SDC Investment, Inc., 274 NLRB No. 78, 118 L.R.R.M. (BNA) 1410, 1411-12 (1985). Thus, while the introduction to eligible voters of forged or altered Board documents may still result in the setting aside of an election because the partisan nature of such misrepresentations is not evident, partisan misrepresentations recognizable as such will not. See The Coca Cola/Dr. Pepper Bottling Company of Memphis, 273 NLRB No. 68, 118 L.R.R.M. (BNA) 1225, 1226 (1984) (rejecting objection that union official's oral misrepresentation invalidated ...