Crown Cork & Seal Company, Inc., Petitioner, v. National Labor Relations Board, Respondent, United Steelworkers of America, AFL-CIO-CLC, Intervenor
Crown Cork & Seal Company, Inc., Petitioner, v. National Labor Relations Board, Respondent, United Steelworkers of America, AFL-CIO-CLC, Intervenor
Crown Cork & Seal Company, Inc., Petitioner, v. National Labor Relations Board, Respondent, United Steelworkers of America, AFL-CIO-CLC, Intervenor
2d 127
108 L.R.R.M. (BNA) 2224, 92 Lab.Cas. P 12,970
violation of 8(a)(5) and 8(a)(1) of the National Labor Relations Act (29
U.S.C. 158(a)(5), 158(a)(1)) and ordering it to bargain with the union
certified by the Board as the employees' representative (the Union). That union
has intervened in this action. Petitioner claims it did not have to bargain with
the Union because the Union was not properly certified. Petitioner asks that the
election be set aside or, in the alternative, that the cause be remanded for a
hearing.
2
Petitioner is engaged in the manufacture and sale of metal cans. On August 16,
1978, the Union filed a representation petition for petitioner's Worland,
Wyoming, plant production and maintenance employees. The Regional
Director held a hearing, resolved pre-election matters, and ordered an election.
Petitioner's request for a review of this decision was denied by the Board. The
Board conducted an election on November 17. Of approximately sixty eligible
voters, forty-seven voted for the Union, one employee voted for another union,
and ten employees voted against any union representation.1 Petitioner filed
sixty objections to the conduct of the election. The Regional Director
conducted an administrative investigation, overruled the objections, and
certified the Union. Petitioner requested review by the Board, raising the same
issues contained in its objections and contending that the Regional Director
should have directed a hearing on the objections. The Board denied the request
for review. Petitioner thereafter refused to bargain, insisting that the Union was
not properly certified. An unfair labor practice charge was filed against
petitioner for failure to bargain. The Board granted the General Counsel's
Motion for Summary Judgment against petitioner and ordered petitioner to
bargain with the Union. The refusal to bargain is admitted by petitioner and
was resorted to by it as a means of contesting the validity of the Board's
certification. Thus, the propriety of that certification is the only issue before us.
NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir. 1980). In
such an instance, the Board's conclusion will not be overturned unless it
amounts to an abuse of discretion. Melrose-Wakefield Hospital Association v.
NLRB, 615 F.2d 563, 566-67 (1st Cir. 1980).
4
Petitioner here renews all of its sixty objections but only briefs four of them.2
First, it claims that by including a copy of a Board document in its campaign
materials, the Union gave the appearance of having the Board's support.
Second, it contends that the Union's pre-election promises to employees were
objectionable. Third, it argues that a Union sign posted near the polling place
on the day of the election contained erroneous wage statements. Fourth, it
claims that ballot secrecy was violated by the use of ballots that allegedly
allowed voters to see other voters' choices.
The Union distributed a four-page brochure during its campaign, page three of
which consisted of a portion of an NLRB publication. Petitioner contends that
this juxtaposition offends the following principle:
8 duplicate a part of the Board's official notice and then to add to it a personal
To
partisan message that may be interpreted by the employee as an endorsement by the
Board of one of the parties to the election, and thus have an impact on the
employees' freedom of choice is, we think, an undesirable use of Board documents
designed for another purpose.
9
Rebmar, Inc., 173 NLRB 1434 (1968). The Regional Director concluded,
however, that the challenged brochure "clearly identif(ies) the (Union) as the
author of the entire handbill," Record, vol. 3, at 323, and thus could not have
misled employees. See Associated Lerner Shops of America, 207 NLRB 348
(1973).
10
No hearing is required to resolve this issue. No one disputes the contents of the
brochure the only question relates to the inference to be drawn from the
brochure. We are not persuaded that the Regional Director's inference amounts
to an abuse of discretion.
13
There is no claim that the Union misrepresented the Master Can Contract's
provisions. Rather, petitioner urges that because the Union could make good on
its promises they had the same distorting effect on the outcome of an election
as improper employer pre-election promises of benefits. When an employer
promises to improve working conditions if his employees reject an organizing
union, the employees' freedom of choice in the election is interfered with and
the election will be set aside. See Wilkinson Manufacturing Co. v. NLRB, 456
F.2d 298, 303 (8th Cir. 1972).
14
NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 459, 11
L.Ed.2d 435 (1964). Here, if the Union were defeated it would have no
opportunity to retaliate. Furthermore, the Union's promise of benefits under the
Master Can Contract was not the result of its unilateral power but rather was the
culmination of prior bargaining with petitioner. Thus, the concern voiced in
Exchange Parts is simply not transferable to intervenor's promises here.
17
Petitioner alleges that the Union's posting on the day of the election of a poster
containing the statement "A (Union) Vote Guarantees You $7.49cents Low,
$10.05cents High Per Hour" materially misrepresented the facts and thus
violated the standard set down in Hollywood Ceramics Co., 140 NLRB 221
(1962), and requires that the election be set aside. There is no dispute as to the
content of the poster.
20
Petitioner introduced sworn declarations attesting that there was "no way at all
that any employee (could) earn a wage of $10.05 per hour" at the Worland
plant under the Master Can Contract. Record, vol. 3, at 475. The Union
provided evidence that cost-of-living raises provided for in the Master Can
Contract brought earnable wages to the level stated on the poster. Petitioner did
not contest this evidence other than by broad declarations like that quoted
above. The Regional Director concluded that petitioner "failed to support its
allegation that the sign displayed by (the Union) on the day of the election
contained any material misrepresentations." Id. at 328.
21
4. Ballot Secrecy.
22
23
affidavits of the plant manager and petitioner's election observer that the voting
booth was set up close to windows in a bright room on a sunny day and that
people looked in these windows. It is not asserted that these people could see
inside the voting booth or that the booth itself was not opaque. Petitioner's
observer declared: "The ballots were yellow in color and the paper was thin....
(I)t was possible to see through the ballots to see how people voted and I did
see through the ballots and did see how at least twenty voters had voted. Other
people could also have seen it." Record, vol. 3, at 508. There is no indication as
to where the observer was standing when she observed the twenty ballots or
even whether the ballots were in the hands of voters when she observed them.
There is no allegation that employees could be observed while voting. There is
no evidence that any employee eligible to vote was aware of the asserted
transparency of the ballots. The Regional Director found that "(T)he ballots
used in the election were printed on the ordinary NLRB ballot stock." Id. at
432.
24
The possibility that the outcome of an election was affected or that voters were
intimidated in making their choice in a less than secret atmosphere has led the
Board to overturn elections in which voting arrangements could have led
employees to believe they were being observed as they voted. See Royal
Lumber Co., 118 NLRB 1015 (1957); Gianasca, d/b/a Imperial Reed & Rattan
Furniture Co., 118 NLRB 911 (1957). But here there is no evidence that
employees were aware that their votes may not have been secret, and thus it is
not necessary to set aside the election. See Sewell Plastics, Inc., 241 NLRB 144
(1979). Again, the petitioner's observer does not indicate when or how she saw
through the ballots or whether her manner of observation would raise a specter
of coercion. Indeed, the Regional Director found that "any specific individual
claiming to have seen the markings on the ballots would have had to make a
very special effort to do so." Record, vol. 3, at 432. The company observer may
have made such an effort, but absent evidence that the voters had reason to
believe that their votes were observable while in their hands, petitioner has
failed to raise a factual issue requiring a hearing. The Regional Director acted
within his discretion when he found that the company observer's testimony that
she saw through twenty ballots did not mean that employees were aware that
their votes were not secret.
25
Honorable A. Sherman Christensen of the United States District Court for the
District of Utah, sitting by designation