Petition — White Automotive Corp. v. National Labor Relations Board

Supreme Gourt, U. &,

‘a FILED

AUG 3 1979

MIGHARL RODAK, JR, CLEI

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1978

No. 29-183

WHITE AUTOMOTIVE CORPORATION,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

GRANT F. SHIPLEY,

425 Lincoln Tower,

Fort Wayne, Indiana 46802,

Counsel for Petitioner, White Auto-

motive Corporation.

WILLIAM P. FAGAN,

EDWARD L. MURPHY, JR.,

LIVINGSTON, DILDINE,

HAYNIE & YODER,

425 Lincoln Tower,

Fort Wayne, Indiana 46802,

Of Counsel.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

| PAGE

CE CE Fe ea Pe 1

ee dks Ra Neh oak eed owees 2

SS 2

EE ee rr 4

ED PS ee 5

Reasons for Granting the Writ ..................000. 7

De n.d e ae bee e aw eb 6 14

APPENDIX A—Supplemental Decision, Order and Certi-

fication of Representative (August 26, 1977) ........ Al

APPENDIX B—Decision and Order of the National

Labor Relations Board (April 25, 1978)...... ..... Al12

APPENDIX C—Opinion of the Court of Appeals (March

ae ome ke ee e's A22

APPENDIX D—Order denying Petition for Rehearing

et cca ce sen veessees A31

APPENDIX E—Judgment of the Court of Appeals (May

EC EGU a sos e sek ws ceesvssssnenses A32

ii

AUTHORITIES CITED.

Cases.

Contract Knitter, Inc. v. National Labor Relations Board,

ree ee er TED ik sk eS ate k esas 11

General Knit of California, Inc., 239 NLRB No. 101,

1978-79 CCH NLRB 15,317 (1978) ............ 8,13

Hollywood Ceramics Co., 140 NLRB 221 (1962)...... 8,9

J. I. Case Co. v. National Labor Relations Board, 555

Pie Oe Se Re TD 8 ak eke CV Ass keen 1]

National Labor Relations Board v. Gissel Packing Co., Inc.,

BP ee Ore es Sd ee Re oh hae ei eke es 3,9

National Labor Relations Board v. Millard Metal Service

Center, Inc., 472 F. 2d 647 (1st Cir. 1973).......... 11

National Labor Relations Board v. Southern Health Corp.,

wae ©. 26 SESE CHW BOT ak bi 59 IGN cs 12

National Labor Relations Board v. Winchell Processing

Corp., 451 F. 23 306 (9th Cir. 1971) ..... 0. sa58,. 12

Shopping Kart Food Market, Inc., 228 NLRB 1311,

1977-78 CCH NLRB 4 18,048 (1977) ............ 13

Thiem Industries, Inc. v. National Labor Relations Board,

ee i Ok Be ae ) ey Perera 12

Statutes.

ro Se Ry |) Bg aber iret 7 er ke rs eee 2

gt ee ern vga ky 5, 8, 10

ee ee ESE 6g kc ean ca kba sdk ban caeoewen 2

eT CEs GCS, 0 4 dR eek ces + rE a ams

ee ee EE Ok 5 Aw eka Ra uA OPE ce Ke RKS 5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

WHITE AUTOMOTIVE CORPORATION,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Petitioner prays that a writ of certiorari issue to review the

judgment herein of the United States Court of Appeals for the

Seventh Circuit entered in the above-entitled case on May 7,

1979.

OPINIONS BELOW.

The opinion of the Acting Regional Director of Region

Twenty-Five of the National Labor Relations Board, dated

August 26, 1977, overruling Petitioner’s Objections to the Cer-

tification of Representative, an unpublished decision, is printed

in Appendix A hereto; Petitioner’s exceptions to this decision

were overruled by the National Labor Relations Board without

opinion; the Opinion of the National Labor Relations Board

sustaining the subsequent bargaining order is printed in Ap-

pendix B hereto and is reported at 235 NLRB No. 155; the

opinion of the United States Court of Appeals for the Seventh

2

Circuit enforcing the .order. of the National.Labor Relations

Board, an unpublished opinion, is printed:in Appendix C hereto;

the Order of the United States Court of Appeals for the Seventh

Circuit denying Petitioner’s Petition for Rehearing, an unpub-

lished order, is printed in Appendix D hereto; and the Judgment

of the United States Court of Appeals for the Seventh Circuit,

unpublished, is printed in Appendix E hereto.

JURISDICTION.

The judgment of the United States Court of Appeals was

entered on May 7, 1979. Jurisdiction of this Court is invoked

under 28 U. S.C. Section 1254(1). |

_ QUESTIONS PRESENTED.

An election of. exclusive bargaining representative pursuant

to Section 9.of the National Labor Relations: Act, 29 U. S. C.

§ 159, was conducted at Petitioner’s Columbia City, Indiana

plant on July 22, 1977, resulting in a 29-27 margin in favor

of the Union with one challenged ballot. Petitioner objected to

the election results, for reason that certain campaign materials

promulgated by the Union were false, that Petitioner could not

effectively respond to the Union’s statements, and that the elec-

tion outcome had presumptively been swayed by the Union’s

false campaign statements. The objections were overruled, and

the Order of the National Labor Relations Board directing

Petitioner to bargain with the Union was subsequently enforced

by the Court of Appeals. The questions presented are:

1. Whether a Union may, in a campaign for election of

exclusive bargaining representative pursuant to the Na-

tional Labor Relations Act, make projections or predic-

tions as to increases in wages and fringe benefits which

will occur if the Union is elected, where it would be an

unfair labor practice for an Employer to disseminate its

own projections or predictions under the rule of National

i is aman

3

Labor Relations. Board v. Gissel venice Co., Inc., 395

U.S. 575, 618.(1969). se beuelagted ) bat

2. Whether, in the course of itgatys | for exclusive

bargaining representative under the’ National ‘Labor Rela-

tions Act, a Union handbill claiming ‘that “U: S. Govern-

ment Reports Show Having a’ Union Pays Off!”, based

upon wage comparisons, is to be ‘held to a standard of

truthfulness concerning the contents of the Government’s

data, where there was insufficient time for the Employer

to obtain a copy of the Report prior to the election.

3. ‘Whether the dissemination of a printed: “Guarantee”

by the Union, in the course of a campaign for election as

exclusive bargaining representative under the National La-

bor Relations Act, stating that the Union could not fine

members, which statement was false, should have been

strictly scrutinized as to its effects on the élection results,

where the Union simultaneously forewarned the employees

that a response by the — would be an Pronaonrny

‘trick’.”

4. Whether an Employer makes out a prima facie case

that results of an election for exclusive bargaining repre-

sentative under the National Labor Relations Act were

tainted, where the Employer shows that the Union made

material misrepresentatious concerning issues central to the

election campaign, and where it is probable. according to

empirical data that the Union’s campaign has shifted

sufficient employee votes to have changed the outcome of

the election.

4

STATUTES INVOLVED.

Relevant portions of the statutes involved, Sections 7, 8 and

9 of the National Labor Relations Act, 29 U.S.C. §§ 157,

158 and 159, are:

29 U.S.C. § 157:

“Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain collec-

tively through representatives of their own choosing, and

to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection,

and shall also have the right to refrain from any or all of

such activities . . .”

29 U.S.C. § 158:

“(a) It shall be an unfair labor practice for an employer—

* * * * *

(5S) To refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provisions

of section 159(a) of this title.”

29 U.S.C. § 159:

“(a) Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the em-

ployees in a unit appropriate for such purposes, shall be

the exclusive representatives of all the employees in such

unit for the purposes of collective bargaining. .. .

* * * oe cd

(c)(1) Whenever a petition shall have been filed, in ac-

cordance with such regulations as may be prescribed by

the Board . . . the Board shall investigate such petition

and if it has reasonable cause to believe that a question of

representation affecting commerce exists shall provide for

an appropriate hearing upon due notice. Such hearing may

be conducted by an officer of employee of the regional

office, who shall not make any recommendations with

respect thereto. If the Board finds upon the record of such

hearing that such a question of representation exists, it

shall direct an election by secret ballot and shall certify

the results thereof.”

5

STATEMENT OF THE CASE.

This is an appeal brought in the United States Court of

Appeals for the Seventh Circuit, seeking to deny enforcement to

a final Order of the National Labor Relations Board directing

Petitioner to bargain with the International Union, United

Automobile, Aerospace & Agricultural Implement Workers of

America, UAW (Union), pursuant to Section 8 (a)(5) of the

National Labor Relations Act, 29 U.S.C. § 158(a)(5). Pe-

titioner White Automotive Corporation (Employer) filed ob-

jections to the certification of the Union, stating in part that the

Union’s campaign literature had contained various false or mis-

leading statements, which Employer could not effectively rebut,

that these misrepresentations vitiated the employees’ free choice

guaranteed to them by Section 7 of the National Labor Rela-

tions Act, 29 U.S.C. § 157, that the Union should not have

been certified pursuant to Section 9(c)(1) of the National

Labor Relations Act, 29 U.S.C. § 159(c)(1), and that Em-

ployer should therefore not be required to bargain with the

Union, The objections were overruled by the National Labor

Relations Board, which entered an order requiring Employer to

bargain collectively with the Union. An appeal was timely

taken to the United States Court of Appeals for the Seventh

Circuit pursuant to 29 U.S.C. § 160(f), which granted en-

forcement to the Board’s Order.

The Union’s Petition for Election was filed just at the time

that Employer was expanding its facilities in Columbia City,

Indiana, increasing the number of unit employees to approxi-

mately 100. At the time of the election, there were still only

63 eligible voters; the election was conducted in the midst of

this plant expansion. The results were quite close: 29 votes in

favor of the Union, 27 against, with one challenged ballot.

It is the dissemination of two (2) printed documents by the

Union exactly one (1) week prior to the election which forms

the basis of Employer’s objections.

6

The first document purported to outline the economic gains

which unionization would confer. The document purported

to show that “Organized Workers Gain More Benefits”, based

upon “a new report by the Bureau of Labor Statistics”, The

document sported a large headline stating that “U.S. Govern-

ment Reports Show Having a Union Pays Off!”. The body of the

document then relates precise dollars-and-cents wage dif-

ferentials, and asks the employees: “What have you been

missing?” The document concludes:

“This is positive proof that having the UAW as your union

and the right to negotiate with your employer can and does

make a B-I-G difference.”

Employer was unable to obtain a copy of the “Report” pur-

portedly relied upon by the Union, prior to the election day.

When the report was received, it turned out that (a) the wage

differentials referred to were not before-and-after “gains” fol-

lowing unionization, but merely reflected existing differences

in compensation; (b) the data base of the report included all

non-office, non-farm private employees, which includes a rela-

tively high pattern of unionization among the better-paid crafts

and trades, and a pattern of non-unionization among the more

poorly paid casual workers and laborers; (c) the report does not

reflect the industry-specific wage comparisons pertaining to the

unit which the UAW was seeking to represent; (d) the dollar

differentials quoted by the Union as differences in “earnings”

are the differences in “total compensation” including various

fringe benefits, whereas the actual pay differential between union

and non-union manufacturing establishments is approximately

one-half of that claimed by the Union.

The second document, distributed the same day, is captioned

a “Guarantee” and bears the seal of the United Auto Workers.

This document was posted by the Union immediately after

Employer had (truthfully) quoted a provision of the Union's

Constitution authorizing the Union to seek automatic deduc-

tions for Union dues, initiation fees, and fines. The Union’s

7

response was‘ topost an impressive! “Guarantee” ‘stating, in we

“The UAW ‘cannot’ and ‘does not’ fine: UAW: —: 4 yin'R

The “Guarantee” was prefaced with ‘the™ statement: “The

favorite anti- -union ‘trick’ of management, ist to ‘make ‘untrue?

statements about ‘initiation fees, assessments, fines' and ‘ ‘union’

dues. Here are the ‘real facts!” ” weNbiisieronenigs riggs ) a eee

Employer attempted to rebut ‘the “Guarantee” by, (truth-,

fully) quoting the Union’s Constitution, which , specifically,

authorizes fines not to exceed $100.00 for any conduct un-

becoming a member of the Union: The Union had, however,

already forewarned the employees about this “anti- union trick”

on the part of management, and Employer could not effectively

rebut the Uniion’s false statemients. ° ” it

On appeal to ‘the United States Court of ‘Appéals for: the:

Seventh Circuit, the Court sustained enforcement of the Board’s

bargaining order. The Court found flat the use of the’ Goverri-

ment statistics created only an ambiguity. ‘The Court’ also agreed

that Employer could not lawfully rebut ‘the’ Union’ § ‘document

by disseminating its own views of what Wages would: bé if the

Union won the election. Concerning the “Guarantee,” the Court

noted that since the Employer. had posted & response’ to’ this

“Guarantee,” it had effectively rebutted’ any misrepresentation.

The Court rejected Employer's arguihent that the’ ‘Union’ s

special position of knowledge as to the contents of its own Con-

stitution makes any Employer tesporise inherently ineffective,

in that the ‘Union’ s express forewarning against a management

rebuttal presumptively made any résponse ineffectual. The Court

also rejected Employer's argument that the ‘Cumulative éffect Of

these various Union handbills, in the context ‘of ‘a tlose élection

result, should tleserve ‘stricter pectin perry 29 coerce,

_REASONS FOR. ¢, GRANTING ‘RHE ‘WRIL. -

An election’ of exclusive sill ai ipliianyt ‘ender

Section 9 of the National Labor 'Relations' Act}: 29 ‘U, $C:

8

§ 159, is intended to be an expression of the free will of the

individual employees. 29 U.S.C. § 157. There is no explicit

statutory provision authorizing a campaign preceding an elec-

tion; nonetheless, it is customary for the National Labor Rela-

tions Board to allow a short period of time for campaigning by

both the Union and the Employer following the determination

that an election should be held. Material misrepresentations of

fact disseminated during that crucial campaign period may taint

the election results, where it may be inferred that the misrepre-

sentations had a significant impact on the election outcome.

Thus, the National Labor Relations Board has adopted a

standard for review of misrepresentations occurring during the

campaign:

“[A]n election should be set aside only where there has

been a misrepresentation or other similar campaign trickery,

which involves a substantial departure from the truth, at a

time which prevents the other party or parties from making

an effective reply, so that the misrepresentation, whether

deliberate or not, may reasonably be expected to have a

significant impact on the election.” Hollywood Ceramics

Co., 140 NLRB 221, 224 (1962); see also General Knit

of California, Inc., 239 NLRB No. 101, 1978-79 CCH

NLRB 4 15,317, at 28,617 (1978).

The importance of the Hollywood Ceramics rule was recently

reiterated by the Board in General Knit of California, Inc.,

supra:

“We believe that the direction of a new election, where,

under Hollywood Ceramics, the Board finds that a substan-

tial and material misrepresentation of fact had a reasonable

tendency to affect the results of the election, has been a

significant factor in the Board’s electoral success, since the

parties, knowing the serious consequences of their acts,

have been deterred from engaging in conduct which would

tend to interfere improperly with a free election.

In addition to acting as a deterrent to deceitful cam-

paign trickery, the existence of the Hollywood Ceramics

standard has provided a means of redress for a party who

doubts the validity of the election results because of preju-

9

dicial campaigning by the prevailing side. The parties’

access to the Board for review further legitimizes the integ-

rity of the electoral process. And, because of its deterrent

effect, the Hollywood Ceramics standard has been well

accepted by the courts and by the parties who have used

our election procedure. Indeed, if anything, the courts in

certain circumstances have applied Hollywood Ceramics

more strictly than the Board has done.” (Footnotes omit-

ted) (1978-79 CCH NLRB at 28,618.)

1. At the heart of any representation election is the question

whether the employees will reap financial benefits, should the

Union be elected. Completely apart from the rule of Hollywood

Ceramics, supra, the Employer may not, as part of the election

campaign, disseminate projections or predictions regarding wage

levels which may result if the Union is elected. The rule is stated

in National Labor Relations Board v. Gissel Packing Co., Inc.,

395 U.S. 575, 618 (1969), that an Employer’s predictions as

to future wages and conditions of employment

“must be carefully phrased on the basis of objective fact to

convey an employer’s belief as to demonstrably probable

consequences beyond his control . . .”

This case presents a major question of first impression: are

a Union’s predictions and projections as to post-election wage

gains subject to the Gissel rule?

During the election campaign at Petitioner’s plant, the Union

disseminated a handbill purporting to show that, if the workers

were organized, they would “gain more benefits”, based upon

“U.S. Government Reports” which were said to show that

“having a union pays off!”. Asking “What have you been miss-

ing?”, the handbill quoted specific dollars-and-cents wage differ-

entials as being “positive proof that having the UAW as your

union and the right to negotiate with your employer can and

does make a B-I-G difference.”

Under the rule of Hollywood Ceramics, Employer was entitled

to respond to this handbill; yet under the Gissel rule, Employer

could not make an effective response by disseminating its own

7

10

predictions or projections as to the benefits of unionization.

The one-sided application of the Gissel rule creates a one-

sided election campaign: while the Union is free to predict that

there will be major increases in wages if the Union is elected, the

Employer must stand mute.

The economic self-interest of the employees is a central con-

cern of any representation election. A rule which permits a

Union to publish predictions and projections as to wage in-

creases, while denying to the Employer the right to counter those

projections, significantly alters the character of the election

campaign. A rule which permits a Union to predict wage in-

creases, while denying the Employer a right to respond in kind,

necessarily abrogates the principle that the National Labor

Relations Act neither favors nor disfavors unionization. See

29 U.S.C. § 157.

2. The Union handbill captioned “U.S. Government Re-

ports Show Having A Union Pays Off!”, quoted certain dollars-

and-cents wage differentials, and concluded that “This is positive

proof that having the UAW as your union and the right to

negotiate with your employer can and does make a B-I-G differ-

ence.” The wage differentials reported by this handbill stated:

“The Government found that workers with a union earn

$2.30 per hour more than a worker without a union.”

The Bureau of Labor Statistics study from which these figures

were drawn reflects a differential in “total compensation” of

$2.30 per hour, based on “all industries”. This “total compensa-

tion” figure includes not only the weekly pay, but also the dollar

values for fringe benefits. The actual pay differential, union

versus non-union, for “all industries” is $1.57. More signifi-

cantly, in the manufacturing industries (which would include

automotive workers), the differential in “pay for time worked”

is only $.96 per hour.

The Union handbill, stating that an organized worker earns

$2.30 per hour more than a non-organized worker, goes on to

11

separately compare the paid leave, pension plan, and insurance

benefits as between organized and non-organized workers. These

fringe benefits were, in the Government report, subsumed in the

$2.30 “compensation” differential; the Union handbill suggests

‘that the fringe benefits are separate and supplemental to the

$2.30 “earnings” differential.

The Court of Appeals for the Seventh Circuit, in refusing to

strictly scrutinize the probable impact of these misstatements as

to wage differentials, failed to follow a line of decisions in other

Circuits requiring a strict degree of truthfulness and precision in

union representations concerning wages. Indicative of the re-

ported decisions with which the Seventh Circuit's opinion in this

case now conflicts, is Contract Knitter, Inc. v. National Labor

Relations Board, 545 F.2d 967, 971 (Sth Cir. 1977):

“[T]he cases place a higher standard of precision on Union

statements regarding wages, since wages ‘are the stuff of

life for Unions and members, the self-same subjects con-

cerning which men organize and elect representatives.

. . . Thus, claims ‘involving wages and benefits based

upon unstated hypotheses constitute a prima facie misrep-

resentation.’ ”

See also J. I. Case Co. v. National Labor Relations Board, 555

F.2d 202, 205 (8th Cir. 1977); National Labor Relations

Board v. Millard Metal Service Center, Inc., 472 F.2d 647,

650 (Ist Cir. 1973).

3. On the same day the Union posted its wage comparison,

it distributed a “Guarantee”, bearing the official seal of the

UAW, falsely stating that “the UAW ‘cannot’ and ‘does not’

fine UAW members!” Employer attempted to rebut this by

posting what it believed to be a provision of the UAW Constitu-

tion which specifically provides for fines. The Court of Appeals

determined that Employer had an opportunity to make an

effective reply to this misrepresentation; in so holding, the Court

departed from a line of cases in other Circuits which recognize

that an Employer cannot effectively reply to a Union statement

12

ee

concerning its own contracts, since a Union’s statements sound

authoritative on this point.

“Assertions about union benefits must be held to a fairly

close standard of accuracy since a union’s statements about

its own contracts sound authoritative. Employees are liable

to accept them uncritically. NLRB v. Winchell Processing

Corp., 451 F.2d 306, 308-09 (9th Cir., 1971); Thiem

Industries, Inc. v. NLRB, 489 F. 2d 788, 792 (9th Cir.

1973).”

The Seventh Circuit failed to give any consideration whatso-

ever to the special problem of credibility inhering in an Employ-

er’s attempts to contradict a Union's representations concerning

the content of its own Constitution. And when the Union mis-

represents that it cannot fine members, the Union has touched

upon an area of vital concern in Federal Labor Law. As Chief

Judge Pell noted, in his dissenting opinion in National Labor

Relations Board v. Southern Health Corp., 514 F.2d 1121,

1129-30 (7th Cir, 1975):

“The authority of Unions to fine members for crossing

picket lines is not an insignificant issue but has been a

controversial labor relations question recurring in recent

years. The Supreme Court has deemed resolution of con-

flicting principles involved in the situation important enough

in the past few years to grant certiorari in order to delineate

the extent and scope of a Union’s authority to discipline its

members for what would otherwise be protected activity:

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87

S. Ct. 2001, 18 L. Ed. 2d 1123 (1967).

Scofield v. NLRB, 394 U. S. 423, 89 S. Ct. 1154, 22

L. Ed. 2d 385 (1969).

NLRB Vv. Granite State Joint Board, 409 U. S. pik a

93 S. Ct. 385, 34 L. Ed. 2d 422 (1972).

NLRB v, Boeing Company, 412 U.S. 67, 93 S. Ct.

1952, 36 L. Ed. 2d 752 (1973).

Boosters Lodge No. 405 v. NLRB, 412 U.S. 84, 93

S.Ct. 1961, 36 L. Ed. 2d 764 (1973).

13

Electrical Workers (IBEW) v. NLRB, 159 U.S. App.

D. C. 272, 487 F. 2d 1143 (1973), aff'd. 417 U. S.

790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974).”

4. Within the past few years, empirical evidence has been

adduced which suggests that the Union campaign generally

produces a 5% switch-over in votes. Shopping Kart Food

Market, Inc., 228 NLRB 1311, 1977-78 CCH NLRB 4 18,048,

at 29,977 (1977). The same data suggest that the Employer's

campaign does not cause any switch-over voting, id., 1977-78

CCH NLRB at 29,982 n. 23, although the interpretation of the

data is subject to disagreement, see General Knit of California,

Inc., 239 NLRB No. 101, 1978-79 CCH NLRB 4 15,317, at

28,619 (1978) (finding that 29% of the elections were deter-

mined by switch-over votes).

The 29-27 balloting in favor of the Union, with one (1) chal-

lenged vote, presents a margin of victory well within the 5%

swing-over which can be directly traced to the Union’s campaign.

Yet the Seventh Circuit held that the standard of review of

the Board’s approval of the election should be characterized

merely as whether or not there has been an abuse of discretion.

It is suggested that, in light of the empirical data upon which

the National Labor Relations Board itself has relied, if the

results of an election are within the narrow range of probable

switch-over effect, and where the Employer demonstrates that

the campaign was tainted by material misrepresentations by the

Union, then the burden of proof should shift to General Counsel

to show that the Union’s margin of victory was not obtained by

virtue of the Union’s misconduct.

14 Al

CONCLUSION. APPENDIX A.

For the reasons set forth above, it is respectfully submitted

that this Petition for a Writ of Certiorari should be granted.

UNITED STATES OF AMERICA

Respectfully submitted,

BEFORE THE NATIONAL LABOR RELATIONS BOARD

GRANT F. SHIPLEY,

425 Lincoln Tower, Regn Twenty-Five

Fort Wayne, Indiana 46802,

Counsel for Petitioner, White Auto-

motive Corporation. WHITE AUTOMOTIVE CORPORATION )

| Employer

WILLIAM P. FaGAn, | -“

EDWARD L. MurPHy, JR., | INTERNATIONAL UNION, UNITED > Case No. 25-RC-6640

LIVINGSTON, DILDINE, | AUTOMOBILE, AEROSPACE & AGRI-

Haynie & YODER, CULTURAL IMPLEMENT WORKERS

425 Lincoln Tower, | oF AuancA (UAW) sii

Petitioner )

Fort Wayne, Indiana 46802,

Of Counsel.

SUPPLEMENTAL DECISION, ORDER AND

CERTIFICATION OF REPRESENTATIVE

Pursuant to a petition filed on May 16, 1977 and a Decision

and Direction of Election issued by the Regional Director, an

election was conducted on July 22, 1977, among certain em-

ployees of the above named Employer to determine whether or

not they desire to be represented by the Petitioner for the pur-

poses of collective bargaining.’ The tally of ballots served upon

1. The appropriate unit as set forth in the Decision and Direction

of Election is as follows:

All production and maintenance employees at the Employer’s

Columbia City, Indiana, plant, but excluding all office clerical

employees, guards, all quality control inspectors, and all truck-

drivers and supervisors as defined in the Act.

A2

the parties at the conclusion of the election shows the following

results:

Approximate number of eligible voters ........ 63

Vous BOO. «os cncnapeanseeeeee 3

Votes cast for the Petitioner .............. 29

Votes cast against participating Labor Organiza-

SORE . isis ine'v'e fb Wels & cee ca 27

Vaid votes coumig8s 5.00 stilidawielewcnes 56

Challenged Ballets 2.0.6. ccssihieteuaeees l

Valid Votes Counted plus Challenged Ballots .. 57

The challenged ballot is not sufficient in number to affect the

results of the election. On July 29, 1977 the Employer filed

objections to the election.? Pursuant to Section 102.69 of the

Rules and Regulations of the National Labor Relations Board,

an investigation was conducted under the direction and super-

vision of the undersigned, who after considering the results

thereof, reports thereon as follows:

The Objections

The Employer’s Objections allege in relevant part as follows:

“1. At a meeting organized and conducted by Petitioner

by and through its representative, James Honaker, on the

evening of July 20, 1977, the Petitioner by and through its

said representative promised to employees in attendance

at the meeting that if the employees elected the Petitioner

as their representative and if the employees then engaged

in a strike against the Employer in an effort to enforce the

demands of Petitioner, the Petitioner would pay to or for

the benefit of the employees throughout the duration of the

strike all premiums necessary to insure the continuation of

coverage by the employees and their dependents of all

health insurance benefits presently being provided by the

Employer to its employees. Petitioner further promised the

employees who were in attendance at the meeting that if

2. All parties were requested to furnish and did furnish various

evidence in support of their respective positions.

A3

they would engage in a strike, the Petitioner would send a

represer tative from Chicago to negotiate and deal with all

of the employees’ creditors to insure that no creditor would

repossess any property of any of the employees because of

nonpayment of installments due on indebtedness to credi-

tors, thereby guaranteeing to take whatever steps were

necessary, including payments to creditors on behalf of

employees, to insure against loss of property because of

nonpayment of debts. Petitioner knew that the matter of

insurance benefits was a substantial issue with certain em-

ployees and its promises of these benefits were calculated to,

and did have, a significant impact on the results of the

election.

2. It is the standard written employment policy of the

Employer not to employ any person under the age of

eighteen years as.a permanent employee. This policy is

based upon the Employer’s own independent concern for

the safety of young employees as well as the fact that many

of the jobs performed at the Employer’s plant are hazardous

occupations under the Fair Labor Standards Act which

are prohibited by that Act from being performed by persons

under the age of eighteen. On January 31, 1977, Mark

Sievers applied for employment with the Employer and

represented on his employment application a date of birth

of February 21, 1958. Late in the afternoon of July 22,

1977, following the election, Employer first heard rumors

that Mark Sievers was presently seventeen years of age.

Employer is now in the process of conducting an investiga-

tion to determine the true age of Mark Sievers and on its

best information and belief believes that Mark Sievers

was born on February 21, 1960 and has at all times material

been under the age permitted by the Fair Labor Standards

Act. Petitioner’s organizational effort at the Employer's

plant commenced shortly following the employment of

Mark Sievers. Mark Sievers served as the chief in-plant

organizer for Petitioner in the solicitation of support for

Petitioner and throughout his tenure of employment Mark

Sievers has served as the chief spokesman for the Peti-

tioner, organizing meetings, distributing literature and

serving as Petitioner’s election observer. The Employer

respectfully submits that such apparent fraud perpetrated

een nT

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on the Employer by the Petitioner’s chief organizer and

spokesman had an undeniable impact on the results of the

election and demands this Board’s fullest scrutiny and

inquiry.

3. On July 15, 1977, Petitioner caused to be distributed

to the employees a Bureau of Labor Statistics report result

which represented that that report found that union em-

ployees received average hourly wages of $2.30 in excess

of the average hourly wages of non-union workers. Such

report also described substantially greater fringe benefits for

union employees in contrast to non-union employees. Em-

ployer was unable to obtain the report itself prior to the

election but on its best information and belief based upon

telephone conversations with personnel at the Bureau of

Labor Statistics the differential in compensation between

union and non-union employees reported by the survey

was based upon all forms of compensation including all

fringe benefits in contrast to actual hourly wage rates as

reported by Petitioner and, if true, Petitioner’s reporting

of the government survey was deliberately calculated to

distort and misrepresent the results thereof to the Peti-

tioner’s benefit.

4. On July 15, 1977, Petitioner caused to be distributed

to the employees a “Guarantee!” which among other things

guaranteed that “the UAW ‘cannot’ and ‘does not’ fine

UAW members.” Petitioner caused this Guarantee to be

made to the employees because it knew that the potential

costs and liabilities of belonging to Petitioner was a major

issue with employees.

Petitioner knew that its misrepresentations of a matter

within its own special knowledge could not be effectively

rebutted by the Employer notwithstanding Employer’s

attempts to correct by furnishing employees portions of

the Petitioner’s constitution since Petitioner could easily

dismiss the Employer’s attempted rebuttal by telling em-

ployees that the Employer was misinterpreting Petitioner’s

constitutional provisions.”

AS

The Exhibits

Attached hereto as Exhibits 1 through 9 are copies of all

the literature distributed by the Employer during the election

campaign. Exhibits 10 through 16 are copies of all of the litera-

ture distributed by Petitioner during the campaign.

Objection 1

In support of Objection 1 the Employer proffered the testi-

mony of a single witness who testified she had attended a Union

meeting a few days prior to the election. At this meeting the

Union’s business agent allegedly stated, in response to an em-

ployee question about health insurance during a strike, that

the Union would pay the insurance and the employees did

not have to worry about it. The employee testified that the

Union agent did not speak in specifics but only in the

general terms mentioned above. The Employer offered only

hearsay testimony in support of the other half of Objection 1

which involves an alleged promise by the Union business agent

that in the event of a strike the Union would send in a repre-

sentative from out of town to work out any financial problems

a striker might have with his creditors. It is the Employer’s

position that the remarks attributed to the Union’s agent are ob-

jectionable for two reasons, First, that they are an alleged mis-

representation. The Employer, however, offers no evidence to

indicate that the remarks attributed to the Union were false

statements of Union policy except that the Employer had never

heard of any instances of the Union engaging in such activity in

a strike situation. The Employer admits, however, that it is not

aware of any strike situation where the Union did not. carry out

such a policy. Additionally, the Employer admits it has no evi-

dence to indicate the Union did not intend to follow such a

procedure should the employees in the instant case go on strike.

Secondly, the Employer contends the remarks made by the

Union agent were objectionable promises of benefit should the

Union win the election.

A6

Petitioner admits that its representative at the July 20, 1977

Union meeting with employees told employees that in the event

of a strike the Union would pay the employee’s insurance pre-

miums and also, if necessary, would bring a representative into

town to meet with the employees’ creditors in an attempt to

secure agreement that no foreclosure or repossession of property

would occur because of non-payment. Petitioner contends that

such practices are the standard policy of the Union.

Clearly the evidence proffered and adduced in respect to Ob-

jection 1 does not warrant the setting aside of the election. The

mere lack of knowledge on the Employer’s part concerning the

Union’s practices in strike situations does not belie the Union’s

contention regarding the truthful nature of their statements con-

cerning Union benefits given to strikers. Also, there is nothing

objectionable in making employees aware of a legitimate Union

benefit available to striking employees. It is no more improper

for the Union to point out strike benefits paid during a strike

than for the Employer to point out detriments such as loss of

wages. Neither is objectionable. Accordingly, Objection I will

be overruled.

Objection 2

In support of Objection 2 the Employer offers evidence which

indicates that employee Mark Sievers was an active Union

adherent throughout the Union campaign. Specifically, the Em-

ployer’s evidence ‘indicates that Sievers distributed Union

authorization cards and Union literature, announced Union

meetings to employees, attended the pre-election hearing with

the Union representative, and acted as the Union’s observer at

the election. The Employer admits that none of Siever’s actions

connected with the campaign were objectionable per se. How-

ever, the Employer contends that at the time he engaged in

these acts Sievers was engaging in a fraud against the Employer

which caused his otherwise unobjectionable acts to become

grounds for setting aside the election. The Employer maintains

A7

that when Sievers was hired on January 31, 1977, he falsified

his application so as to indicates that he was eighteen years

old, when, in fa:t, he was only sixteen. The Employer allegedly

did not learn of this fact until after the election. The Employer

contends that it maintains a written policy of hiring only persons

eighteen years old or older, and also that for it to utilize an

employee who is less than eighteen on the vast majority of its

jobs is a violation of the Fair Labor Standards Act. It is the

Employer’s position that his fraud by Sievers was imputable to

the Union because Sievers engaged in activity on its behalf and

thus is grounds for setting aside the election. The Employer ad-

mits that it has no evidence to indicate that at anytime prior to

the election did the Union authorize or ratify Sievers to speak

on the Union’s behalf or with its authority, and that with the ex-

ception of the time he spent acting as the Union’s observer, the

Union did not pay Sievers for any of the activities he performed

in support of the Union. The Employer alleges that Sievers was

placed in the plant by Petitioner but proffered no probative evi-

dence to support its allegation during the investigation.

The Petitioner admits that Sievers engaged in actively in

support of the Union but denies that Sievers was its agent. Both

Sievers and the Petitioner disclaim that the Union had any

part in his allegedly fraudulent application or even had any

knowledge of any alleged falsification of application until after

the election.

Clearly, the evidence proffered and adduced during the in-

vestigation does not establish Union agent status for Mark

Sievers at any time prior to the election. Additionally, as ad-

mitted by the Employer, had Mark Sievers been eighteen at

the time he was hired his conduct was in no way objectionable.

Thus, the question is reduced to one of whether or not the fact

that Sievers was both working for the Employer under a false

pretense and supporting the Union while he was under eighteen

is objectionable. In the opinion of the undersigned such an un-

authorized misrepresentation of age is not cause for setting aside

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the election. Initially, such an alleged fraud was not of the sort

which would cause employees to vote for the Petitioner in the

election. Nor was the fraud attributable to the Petitioner. Ad-

ditionally, there is no standard in the Act which prohibits or

makes objectionable or illegal the Union activity of any em-

ployee under a specific age.

Thus, assuming arguendo the Employer’s contention regard-

ing a connection between the Petitioner and Sievers’ secure-

ment and/or continuance of employment under false pretense

(either directly or flowing from an agency relationship) were

true, the undersigned fails to perceive any possible effect on the

electorate’s choice in its balloting. Thus any question concerning

Petitioner’s campaigning on the issue of the discharge of an

activist is not presented as Sievers was not discharged, or the

recipient of any other adverse action, prior to the election. The

Employer’s argument that the Petitioner would have been, with-

out Sievers’ presence, unable to secure so an effective an em-

ployee advocate is unsupported by evidence, remote, and grossly

speculative in nature.

Accordingly, Objection 2 will be overruled.

Objections 3 and 4

In Objection 3 the Employer contends that Exhibit 13 con-

tains an objectionable misrepresentation. Specifically, the Em-

ployer maintains that in the Exhibit the Petitioner has misrepre-

sented to employees that union workers receive an average hourly

wage rate of $2.30 more per hour than do non-union em-

ployees. The Employer takes the position that the accurate

use of the figure is that unionized employees receive $2.30 per

hour more than non-unionized employees in total compensation

i.e. wage or earnings including fringe benefits and that the

difference is not so large when strictly hourly wage rates (ex-

clusive of fringe benefits) are compared. It is the Employer’s

position that the manner in which the Petitioner used the figure

AY

in Exhibit 13 fails to distinguish between hourly wage rates

and total compensation and that it even encourages a misunder-

standing of the use of the figure and thus is objectionable. The

Employer admits that it obtained a copy of Exhibit 13 on July

15, 1977, and on July 18, 1977, it learned telephonically from

the publisher of the figure precisely the basis for comparison.

However, the Employer did not attempt to respond to the al-

leged misstatement because it felt it could not do so without a

copy in hand of the report from which it came and such a copy

did not reach the Employer until after the election even though

requested on July 18.* The Employer admits that in meetings

with employees prior to the election it discussed the subject of

wage rates and fringe benefits. Contrary to the Employer, earn-

ings in normal parlance may include fringe benefits and mere

use of alternate meanings of words to that which the Employer

would have selected is not objectionable Hollywood Ceramics

Co., Inc., 140 NLRB 221; Ralston Purina Company, 147

NLRB 506.

In Objection 4 the Employer makes reference to Exhibit 12

and contends that it contains misrepresentations worthy of

setting aside the election. The single point in the Exhibit at-

tacked by the Employer is the statement “THE UAW ‘CAN-

NOT’ AND ‘DOES NOT’ FINE UAW MEMBERS.” The Em-

ployer cites the Petitioner’s constitution as belying this

statement. The Employer admits that it gained knowledge of

the alleged misrepresentation on July 15, 1977 and distributed

Exhibit 9 in response to Exhibit 12 at meetings of employees

held on July 20 and 21, 1977. However, the Employer main-

tains that it was unable to effectively respond to Exhibit 12

because it was concerned with an internal Union matter on

which employees would be more likely to credit Petitioner’s

statements. The Union contends the statement is true as stated

3. Attached hereto as Appendix A is a copy of the survey from

which according to the Employer, the figures in Exhibit 13 were

taken.

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and that the International Union does not fine members but

rather fines to members are only levied by local unions.

In considering Objection 4, it is noted that the Employer ad-

mits making response to the Union’s alleged misrepresentations

about Union fines. In similar circumstances the Board has de-

clined to set aside the election. Chem-Trol Chemical Co., 190

NLRB 302; Hollywood Ceramics Co., Inc., supra.

Additionally, in considering alleged misrepresentations in

election campaigns, the Board has recently held that, except in

rare cases not involved herein, it will no longer set aside elec-

tion on the basis of misleading campaign statements. Shopping

Kart Food Market, Inc., 228 NLRB 190.

Accordingly, for all the reasons stated above, Objections 3

and 4 will be overruled.

Decision and Order*

For the reasons hereinabove set forth, it is hereby ordered

that the Employer’s Objections be overruled in their entirety.

Certification of Representative

It Is HEREBY CERTIFIED that a majority of the valid ballots

has been cast for International Union, United Automobile,

Aerospace & Agriculture Implement Workers of America

(UAW), and that pursuant to Section 9(a) of the National

Labor Relations Act as amended, the said labor organization is

the exclusive representative of all the employees in the unit

4. Under the provisions of Sections 102.67 and 102.69 of the

Board’s Rules and Regulations a request for review of the Supple-

mental Decision may be filed with the Board in Washington, D. C.

This request must be received by the Board in Washington by

September 8, 1977.

eae

All

found appropriate herein for the purposes of collective bargain-

ing with respect to rates of pay, wages, hours of employment,

or other conditions of employment.

Dated at Indianapolis, Indiana this 26th day of August, 1977.

/s/ GEORGE M. Dick

George M. Dick

Acting Regional Director

National Labor Relations Board

Region Twenty-five

Room 232, Federal Office

Building

575 North Pennsylvania Street

Indianapolis, Indiana 46204

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APPENDIX B.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

WHITE AUTOMOTIVE CORPORATION )

and

INTERNATIONAL UNION, UNITED Case 25—CA—

AUTOMOBILE, AEROSPACE & AGRI- 1 9345—2

CULTURAL IMPLEMENT WORKERS

OF AMERICA (UAW) 7

DECISION AND ORDER

Upon a charge filed on November 18, 1977, by International

Union, United Automobile, Aerospace & Agricultural Imple-

ment Workers of America (UAW), herein called the Union,

and duly served on White Automotive Corporation, herein

called Respondent, the General Counsel of the National Labor

Relations Board, by the Regional Director for Region 25, issued

a complaint on November 29, 1977, against Respondent, alleg-

ing that Respondent had engaged in and was engaging in un-

fair labor practices affecting commerce within the meaning of

Section 8(a)(5) and (1) and Section 2(6) and (7) of the

National Labor Relations Act, as amended. Copies of the

charge, complaint, and notice of hearing before an Administra-

tive Law Judge were duly served on the parties to this pro-

ceeding.

With respect to the unfair labor practices, the complaint al-

leges in substance that on August 26, 1977, following a Board

election in Case 25—-RC—6640, the Union was duly certified

as the exclusive collective-bargaining representative of Respond-

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ent’s employees in the unit found appropriate;’ and that, com-

mencing on or about August 26, 1977, and at all times there-

after, Respondent has refused, and continues to date to refuse,

to bargain collectively with the Union as the exclusive bargain-

ing representative, although the Union has requested and is re-

questing it to do so. On December 9, 1977, Respondent filed

its answer to the complaint admitting in part, and denying in

part, the allegations in the complaint. Respondent admits that

it meets the Board’s jurisdictional standards and that on July

22, 1977, a majority of the employees in the unit found appro-

priate cast ballots to designate the Union as their exclusive

collective-bargaining respresentative. It denies that the Union

has been, at all times since July 22, 1977, and is now, the ex-

clusive representative of all the employees in the appropriate

unit for the purposes of collective bargaining, but admits that

on August 26, 1977, the Acting Regional Director certified the

Union as the exclusive collective-bargaining representative of

the employees in the appropriate unit. Respondent admits the

allegation that it refused, and continues to refuse, to meet and

bargain with the Union as the collective-bargaining representa-

tive, but denies the conclusory 8(a)(5) and (1) allegations.

Respondent alleges that the Acting Regional Director im-

properly certified the Union as the exclusive collective-bargain-

ing representative of the employees in the appropriate unit be-

cause the Acting Regional Director failed to uphold Respond-

ent’s meritorious objections.

On December 16, 1977, counsel for the General Counsel

filed directly with the Board a motion to strike portions of

1. Official notice is taken of the record in the representation

proceeding, Case 25—-RC—6640, as the term “record” is defined

in Secs. 102.68 and 102.69(g) of the Board’s Rules and Regulations,

Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938

(1967), enfd. 388 F. 2d 683 (C. A. 4, 1968); Golden Age Beverage

Co., 167 NLRB 151 (1967), enfd. 415 F. 2d 26 (C.A. 5, 1969);

Intertype Co. v. Peneilo, 269 F.Supp. 573 (D.C. Va., 1967);

Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A.

7, 1968); Sec. 9(d) of the NLRA, as amended.

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Respondent’s answer and a Motion for Summary Judgment.?

‘Subsequently, on February 14, 1978, the Board issued an order

transferring the proceeding to the Board and a Notice To Show

Cause why the General Counsel’s Motion for Summary Judg-

ment should not be granted. Respondent thereafter filed a

response to Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Relations

Board ..as delegated its authority in this proceeding to a three-

member panel.

Upon the entire record in this proceeding, the Board makes

the following:

Ruling on the Motion for Summary Judgment

In its answer to the complaint and its response to the Notice

To Show Cause, Respondent attacks the Union's certification

on the basis of certain preelection conduct by the Union which

Respondent alleges improperly influenced the results of the

election.*

2. Subsequently, on February 6, 1978, counsel for the General

Counsel submitted an amendment to the Motion for Summary Judg-

ment, correcting the inadvertent omission of certain Appendixes from

its original Motion for Summary Judgment, and moved the Board to

allow the amendment. We grant counsel for the General Counsel’s

motion to amend.

3. More particularly, Respondent alleges that certain union

campaign materials contained material misrepresentations of fact

warranting a new election. The alleged misrepresentations were:

(1) a statement that, according to Bureau of Labor Statistics infor-

mation, unionized workers receive an average wage rate of $2.30

per hour more than nonunion workers, when in fact the differeutial

reported was $2.30 per hour in total compensation, including fringe

benefits; and (2) a union statement that “the UAW ‘Cannot’ and

‘Does Not’ fine UAW Members,” which Respondent rebutted by

citing to its employees art. 31 of the Union’s constitution, which

authorizes such fines. The Acting Regional Director concluded that

the foregoing statements did not constitute material misrepresenta-

tions sufficient to warrant a new election under Hollywood Ceramics,

(Footnote continued on next page.)

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Review of the record herein reveals that in Case 25—RC—

6640 the petition was filed by the Union on May 16, 1977. On

June 22, 1977, the Regional Director issued his Decision and

Direction of Election, and the election was conducted on July

22, 1977. On July 29, 1977, Respondent filed timely objections

to the election, which the Acting Regional Director overruled

in their entirety on August 26, 1977. Respondent filed its re-

quest for review of the Acting Regional Director’s Supplemental

Decision, Order, and Certification of Representative on Septem-

ber 8, 1977, which was denied by the Board on September 22,

1977, as it raised no substantial issue warranting review.

Following a request by the Union on or about September 1,

1977, that Respondent bargain collectively in good faith with

respect to rates of pay, hours, and other terms and conditions

of employment, Respondent refused to recognize and bargain in

good faith with the Union as the exclusive bargaining represen-

tative of its employees in the certified unit.

In response to a Motion for Summary Judgment, an adverse

party may not rest upon denial in its pleadings, but must

present specific facts at issue which require a hearing.* Respond-

ent in the instant case presented no material facts not admitted

or previously determined.

(Footnote continued from preceding page.)

140 NLRB 221 (1962), and that, in any event, the Board in Shop-

ping Kart Food Market, Inc., 228 NLRB No. 190 (1977), decided

it would no longer set aside elections on the basis of alleged mis-

representations, except in rare cases. As noted elsewhere, on Septem-

ber 22, 1977, the Board denied Respondent’s request for review of

the Acting Regional Director’s conclusion. We note that under either

the Hollywood Ceramics or the Shopping Kart rationale the alleged

misrepresentations presented herein clearly do not warrant setting

aside the election.

Respondent raises two other defenses in its answer which were

also raised as objections to the election. We find these other defenses

to be untimely because they were decided adversely to Respondent

by the Acting Regional Director, and Respondent failed to preserve

them by including them in its request for review. See Sec. 102.67(f)

of the Board’s Rules and Regulations, Series 8, as amended.

4. Western Electric Company, Hawthorne Works, 198 NLRB

623 (1972).

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It is well settled that in the absence of newly discovered or

previously unavailable evidence or special circumstances a

respondent in a proceeding alleging a violation of Section 8(a)

(5) is not entitled to relitigate issues which were or could have

been litigated in a prior representation proceeding.®

All issues raised by Respondent in this proceeding were or

could have been litigated in the prior representation proceeding,

and Respondent does not offer to adduce at a hearing any newly

discovered or previously unavailable evidence,® nor does it

allege that any special circumstances exist herein which would

require the Board to reexamine the decision made in the repre-

sentation proceeding. We therefore find that Respondent has not

raised any issue which is properly litigable in this unfair labor

practice proceeding. We shall, accordingly, grant the Motion

for Summary Judgment.’

On the basis of the entire record, the Board makes the follow-

ing:

Findings of Fact

I. The Business of Respondent

Respondent is a Colorado corporation engaged in the manu-

facture, sale, and distribution of automobile tops, roll bars, tire

carriers, automotive products, and related products. During the

past 12 months, which period is representative of all times

material herein, Respondent shipped directly to points outside

the State of Indiana goods valued in excess of $50,000. During

the same 12 months, Respondent purchased goods valued in

5. See Pittsburgh Plate Giass Co. v. N. L. R. B., 313 U.S. 146,

162 (1941); Rules and Regulations of the Board, Secs. 102.67(f)

and 102.69(c).

6. Respondent’s allegation that it has newly discovered evidence

is without merit, inasmuch as the allegedly “newly discovered”

evidence was presented to the Acting Regional Director in support

of Respondent’s objections to the election, and was presented to the

Board in support of Respondent’s request for review.

7. We deny the General Counsel’s motion to strike portions of

Respondent’s answer.

Se ee

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excess of $50,000, which were shipped directly to it from points

located outside the State of Indiana.

We find, on the basis of the foregoing, that Respondent is, and

has been at all times material herein, an employer engaged in

commerce within the meaning of Section 2(6) and (7) of the

Act, and that it will effectuate the policies of the Act to assert

jurisdiction herein.

II. The Labor Organization Involved

International Union, United Automobile, Aerospace & Agri-

cultural Implement Workers of America (UAW), is a labor

organization within the meaning of Section 2(5) of the Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute a unit

appropriate for collective-bargaining purposes within the mean-

ing of Section 9(b) of the Act:

All production and maintenance employees at the Em-

ployer’s Columbia City, Indiana, plant, but excluding all

office clerical employees, guards, all quality control inspec-

tors, and all truckdrivers and supervisors as defined in

the Act.

2. The certification

On July 22, 1977, a majority of the employees of Respondent

in said unit, in a secret ballot election conducted under the

supervision of the Regional Director for Region 25, designated

the Union as their representative for the purpose of collective

bargaining with Respondent. The Union was certified as the

collective-bargaining representative of the employees in said

unit on August 26, 1977, and the Union continues to be such

exclusive representative within the meaning of Section 9(a) of

the Act.

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B. The Request to Bargain and Respondent's Refusal

Commencing on or about September 1, 1977, and at all times

thereafter, the Union has requested Respondent to bargain col-

lectively with it as the exclusive collective-bargaining representa-

tive of all the employees in the above-described unit. Commenc-

ing on or about September 1, 1977, and continuing at all times

thereafter to date, Respondent has refused, and continues to

refuse, to recognize and bargain with the Union as the exclusive

representative for collective bargaining of all employees in said

unit.

Accordingly, we find that Respondent has, since September 1,

1977, and at all times thereafter, refused to bargain collectively

with the Union as the exclusive representative of the employees

in the appropriate unit, and that, by such refusal, Respondent

has engaged in and is engaging in unfair labor practices within

the meaning of Section 8(a) (5) and (1) of the Act.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set forth in section III, above,

occurring in connection with its operations described in section

I, above, have a close, intimate, and substantial relationship to

trade, traffic, and commerce among the several States and tend

to lead to labor disputes burdening and obstructing commerce

and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and is engaging

in unfair labor practices within the meaning of Section 8(a) (5)

and (1) of the Act, we shall order that it cease and desist there-

from and, upon request, bargain collectively with the Union as

the exclusive representative of all employees in the appropriate

unit, and, if an understanding is reached, embody such under-

standing in a signed agreement.

In order to insure that the employees in the appropriate unit

will be accorded the services of their selected bargaining agent

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for the period provided by law, we shall construe the initial

period of certification as beginning on the date Respondent

commences to bargain in good faith with the Union as the recog-

nized bargaining representative in the appropriate unit. See

Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com-

merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229

(1962), enfd. 328 F. 2d 600 (C. A. 5, 1964), cert. denied 379

U.S. 817 (1964); Burnett Construction Company, 149 NLRB

1419, 1421 (1964), enfd. 350 F. 2d 57 (C. A. 10, 1965).

The Board, upon the basis of the foregoing facts and the entire

record, makes the following:

Conclusions of Law

1. White Automotive Corporation is an employer engaged

in commerce within the meaning of Section 2(6) and (7) of the

Act.

2. International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America (UAW), is a labor

organization within the meaning of Section 2(5) of the Act.

3. All production and maintenance employees at the Em-

ployer’s Columbia City, Indiana, plant, but excluding all office

clerical employees, guards, all quality control inspectors, and

all truckdrivers and supervisors as defined in the Act constitute

a unit appropriate for the purposes of collective bargaining

within the meaning of Section 9(b) of the Act.

4. Since August 26, 1977, the above-named labor organi-

zation has been and now is the certified and exclusive repre-

sentative of all employees in the aforesaid appropriate unit for

the purpose of collective bargaining within the meaning of Sec-

tion 9(a) of the Act.

5. By refusing on or about September 1, 1977, and at all

times thereafter, to bargain collectively with the above-named

labor organization as the exclusive bargaining representative of

all the employees of Respondent in the appropriate unit, Re-

spondent has engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) of the Act.

A20

6. By the aforesaid refusal to bargain, Respondent has inter-

fered with, restrained, and coerced, and is interfering with, re-

straining, and coercing, employees in the exercise of the rights

guaranteed to them in Section 7 of the Act, and thereby has

engaged in and is engaging in unfair labor practices within the

meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor prac-

tices affecting commerce within the meaning of Section 2(6)

and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Beard hereby

orders that the Respondent, White Automotive Corporation,

Columbia City, Indiana, its officers, agents, successors, and

assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of pay,

wages, hours, and other terms and conditions of employment

with International Union, United Automobile, Aerospace & Agri-

cultural Implement Workers of America (UAW), as the exclu-

sive bargaining representative of its employees in the following

appropriate unit:

All production and maintenance employees at the Em-

ployer’s Columbia City, Indiana, plant, but excluding all

office clerical employees, guards, all quality control in-

spectors, and all truckdrivers and supervisors as defined in

the Act.

(b) In any like or related manner interfering with, restrain-

ing, or coercing employees in the exercise of the rights guaran-

teed them in Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor or-

ganization as the exclusive representative of all employees in

A21

the aforesaid appropriate unit with respect to rates of pay, wages,

hours, and other terms and conditions of employment, and, if an

understanding is reached, embody such understanding in a signed

agreement.

(b) Post at its Columbia City, Indiana, place of business

copies of the attached notice marked “Appendix.”* Copies of

said notice, on forms provided by the Regional Director for

Region 25, after being duly signed by Respondent's representa-

tive, shall be posted by Respondent immediately upon receipt

thereof, and be maintained by it for 60 consecutive days there-

after, in conspicuous places, including .all places where notices

to employees are customarily posted. Reasonable steps shall be

taken by Respondent to insure that said notices are not altered,

defaced, or covered by any other material.

(c) Notify the Regional Director for Region 25, in writing,

within 20 days from the date of this Order, what steps have been

taken to comply herewith.

Dated, Washington, D. C. April 25, 1978.

eee ee err ete eee ee eee er eee tere eee ere reer trees

Ae eee ee Renee em ee eee ee ena ne eens tOMes es aeeees eee sesseetseeemsesesbessseessonsesssacinseces

Pree rrr reer errr ier ite iter tir rier Serer teeter ert rts

Betty Southard Murphy, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

8. In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD.”

A22

APPENDIX C.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 4, 1979

March 20, 1979

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

WHITE AUTOMOTIVE CORPORATION, On Petition for Review

Petitioner, and Cross-Applica-«

VS. tion for Enforcement

No. 78-1680 of an Order of the

NATIONAL LABOR RELATIONS BOARD, National Labor Re-

Respondent. lations Board.

ORDER

The National Labor Relations Board held White Automotive

Corporation (White) in violation of the National Labor Rela-

tions Act for refusing to bargain collectively with the Union!

which had been certified as the exclusive bargaining agent of

some of its production and maintenance employees. White peti-

tions for review of the Board’s bargaining order, asserting that

the Union should not have been certified because of two alleged

1. The International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America (UAW).

A23

misrepresentations during the course of the campaign.’ The

Board cross-appeals for enforcement of its order. We have

decided that it should be enforced.

On May 16, 1977, the Union petitioned the Board for a

representation election, seeking certification as the exclusive

bargaining representative of the production and maintenance

workers at White’s plant in Columbia, Indiana. At a June 3

representation hearing, the parties stipulated as to the appro-

priate unit (Tr. 8-10) but White sought to have the election

postponed until late August. In support of this position, White

represented that much of the production work would be trans-

ferred to a new facility adjoining the old plant in early July

1977. The ensuing changes would include a substantial increase

in the size of the unit as well as some additional and different

job classifications. White also asserted at the hearing that the

disruption entailed by the move would interfere with an orderly

and informative election campaign. On June 22, the Regional

Director ruled on the basis of the hearing and post-hearing

briefs that White’s objections were insufficient to postpone the

election,® which he then set for July 22. White did not seek

review of that election date.

The election resulted in 29 votes for the Union, 27 votes

against it, and one challenged ballot.‘ White filed objections to

the conduct of the election, including the two alleged misrepre-

sentations involved in this appeal. After an investigation, the

Acting Regional Director on August 26 overruled the objections

2. There is generally no right of judicial review from Board

certification of a union. A defense to an unfair labor charge based on

an employer’s refusal to recognize or bargain with a certified union is

the usual means of securing judicial review of the certification deci-

sion. Peerless of America, Inc. v. National Labor Relations Board,

576 F.2d 119, 121 (7th Cir. 1978).

3. The Union asserts, and White does not dispute, that it is

standard procedure for the Board to hold an election within 30 days

after the decision to grant an election petition (Br. 15, n. 9).

4. The total number of eligible voters was 63, and there were

three void ballots.

A24

and certified the Union since the challenged ballot could not

affect the outcome of the election. White sought review of the’

certification, again asserting the misrepresentations relied, upon

here. The Board denied review on September 22 on the ground

that the petition raised no substantial issues warranting ‘review.

Thereafter White concededly refused to bargain with the

Union. On November 18, the Union complained to the Board

that White’s refusal to bargain constituted an unfair labor prac-

tice in violation of Section 8(a)(1) and (5) of the Act (29°

U.S.C. § 8(a)(1) and (5)). White answered, asserting that

the Union should not have been certified as the exclusive ‘bar-

gaining representative because the conduct previously objected

to had affected the results of the election. The Board granted

summary judgment for'the Union on the unfair labor practice

charge on April 25, 1978, on the ground that all of the issues

raised by White were or could have been raised in the represen-

tation hearing. The Board ordered White to cease arid desist

from engaging in unfair labor practices in violation of Section

8(a)(1) and (5) of the Act and ordered it affirmatively to

bargain collectively with the Union and to post appropriate

notices. It is this order that White asks us to set aside on review.

The standard for review of a Labor Board determination of

whether an election should be set aside has often been character-

ized as abuse of discretion. Peerless of America, Inc. v. National

Labor Relations Board, 576 F.2d 119, 122 (7th Cir. 1978):

National Labor Relations Board v. Southern Health Corpora-

tion, 514 F.2d 1121, 1124°(7th Cir. 1975). While this Court

will not rubber-stamp the Board’s conclusions (Peerless: of

America, supra, at 124), we have recognized that the’ task of

evaluating campaign conduct is peculiarly within the Board’s

administrative domain. National Labor Relations Board ‘Vv.

Southern Health Corporation, supra, at 1123, The' Board has

recently vacillated in the standard it applies to judge alleged

campaign misconduct. For many years, the test was that set out

in Hollywood Ceramics, 140 NLRB 221, 224 (1962). This test

A25

focused on whether there had been a substantial misrepresenta-

tion. Applying the test established in Hollywood Ceramics,

“an election should be set aside only where there has been

a misrepresentation or other similar campaign trickery,

which involves a substantial departure from the truth, at a

time which prevents the other party or parties from making

an effective reply * * *.”

In 1977, however, a divided Board rejected the Hollywood

Ceramics test and decided elections should not be set aside on

account of campaign misrepresentations except in rare circum-

stances. Such circumstances were described as improper use of

Board processes or the use of forged documents which cause the

employees to be unable to recognize them for what they are.

Shopping Kart Food Market, Inc., 228 NLRB 131 1, 1313-1314

(1977). Still more recently, the majority of the Board, over two

lengthy dissents, overruled Shopping Kart and reinstated the

Hollywood Ceramics standard. General Knit of California, Inc.,

239 NLRB No. 101 (1978). While the apparent difficulty the

Board is experiencing in settling on a consistent standard for

dealing with election misconduct could cast doubt on the pre-

sumptive validity of its decisions in individual cases, we are

nevertheless convinced that the decision in the present case

was correct.

Both the Acting Regional Director in his certification order

and the Board in its bargaining order specifically held that the

misconduct complained of was insufficient to justify setting

aside the election under either the Hollywood Ceramics or the

Shopping Kart tests." We agree that this conduct fell short of

any standard for which results of elections have been or should

be set aside.

_ 5. The Board considered all the allegations presented by White

in this appeal at the time White appealed the certification decision.

On the basis of that prior decision the Board granted summary

judgment for the Union on the unfair labor Practice charge, com-

menting specifically that the two alleged misrepresentations were

insufficient to warrant a new election under the Hollywood Ceramics

test (App. 22-23, n. 3). aks

A26

The “Guarantee”

On July 15, one week before the election, the Union circu-

lated a handbill entitled “Guarantee!”, which asserted that the

UAW makes no assessments and that it cannot and does not fine

its members. White asserts that the UAW constitution does

provide for assessing fines against members, and that the

“Guarantee!” therefore was a material misrepresentation.

At meetings with the employees on July 20 and 21, White

distributed its own handbill rebutting the “Guarantee!” by

quoting from the sections of the Union’s constitution that author-

ized fines and other disciplinary measures against members.

White’s handbill queried, “Why did the union lie to you??” In

the representation proceeding before the Acting Regional Direc-

tor, the parties differed on whether the Union’s “Guarantee!”

contained misrepresentations. The Union contended the hand-

bill referred to the International Union which, it asserted, is not

authorized to assess or fine members, although the Local Union

may. This factual dispute was not resolved, since the Acting

Regional Director concluded that White had effectively answered

the offending circular so that under Hilywood Ceramics the

election should not be set aside.

White argued on appeal to this Court that because the title

“Guarantee!” was lettered in Old English script, and because the

circular had an impressive border and bore the Union seal, it

purported to be an official document and was understood as such

by the employees. This appears to be a rather far-fetched attempt

to suggest that the document was forged, which might bring it

within one of the situations in which the Board had said in

Shopping Kart, supra, that it would set aside an election. We

find it hard to believe that any employees would understand the

“Guarantee!” to be anything other than a campaign document

in an eye-catching format. White also asserts that the “Guaran-

tee!” constituted actionable fraud under Indiana law. Whether

or not this is true is irrelevant to a consideration of whether the

election should be set aside. We find both the forgery and the

A27

fraud arguments unpersuasive in view of the fact that White had

ample time to rebut the perceived misrepresentation and did in

fact do so. Even assuming the “Guarantee” constituted a

material misrepresentation, it is insufficient to justify setting

aside the election since the last element of the Hollywood

Ceramics test—lack of opportunity to make an effective reply—

was not present.

Finally with respect to this handbill, White argues that the

effectiveness of its reply was undermined in advance by the first

paragraph of the “Guarantee!”, which states “The favorite anti-

union ‘trick’ of management is to make ‘untrue’ statements about

initiation fees, assessments, fines and union dues. Here are the

‘real facts!” White appears to be suggesting that the first person

to call the other a liar thereby insures his own credibility. That

proposition is patently unsupportable and in any event does not

help White since it first asserted in a June 29 letter that “a union

doesn’t even have to tell the truth in a campaign.” The same

letter introduced the issue of fines and assessments with the

comment that if the Union wins “you are going to be supporting

it with dues, fines and assessments for a long, long time.” In a

subsequent letter on July 13, White quoted from the section of

the Union constitution authorizing dues and fines and emphasiz-

ing the financial costs of union membership (R. item 10,

attached documents). Accordingly we cannot conclude that

White’s opportunity to rebut the alleged misrepresentation was

so significantly impaired that the election should be set aside.

The Wage Comparison

White also objects to a second Union handbill distributed the

same day as the “Guarantee!”. This circular stated that a report

by the Bureau of Labor Statistics (BLS) showed that union

workers earn $2.30 per hour more than workers without unions.

It stated that the average hourly rate of compensation for

unionized non-farm workers was $5.83 an hour in 1972, com-

pared to $3.53 for similar, non-unionized workers. The handbill

A28

went on to compare paid leave, pension plans and life insurance

and health benefits for union as compared to non-union workers,

in each case indicating that union workers fared considerably

better. White argues that the handbill was intended to and did

convey the impression that wages for union workers were $2.30

per hour higher than wages for non-union workers, and that in

addition the fringe benefits were also higher for union workers.

In fact, the BLS report relied upon subsumed wages and fringe

benefits in the total rate of compensation, which it found to be

$2.30 higher for union workers. The extra fringe benefits are

therefore included in the $2.30 figure, rather than being in

addition to it.

White relies on Peerless of America v. National Labor Rela-

tion Board, supra, in which this Court recognized the impor-

tance of wage comparisons in an employee’s decision on how to

vote on unionization. Peerless held that a union’s misrepresenta-

tion of wage comparisons between a purportedly similar plant

in which it had negotiated the contract and the plant in which

the election was held could fatally infect the election. The case

was remanded to the Board for a determination of whether the

misrepresentation was substantial enough to justify setting aside

the result of the election.

Peerless did not hold that all misrepresentations of compara-

tive wages necessitate invalidating the election, That is appro-

priate only where the misrepresentation is substantial and

cannot, because of time or inability to identify the basis for

the figures, be corrected by the other party. In this case, it is

not clear there was a misrepresentation at all. As the Acting

Regional Director noted in his certification decision, “(Ejarnings

in normal parlance may include fringe benefits * * *” (App.

12). We cannot characterize the manner in which the Union

described the BLS report as a misrepresentation, although it

could be considered ambiguous.

In addition, White did have the opportunity to reply and

to clarify the ambiguity. Unlike the situation in Peerless, supra,

A29

the Union in this case clearly revealed the source of its informa-

tion in the handbill itself. Three days after the handbill was

circulated, White contacted the BLS to confirm the statistics

contained in the handbill and learned that the $2.30 figure

included fringe benefits.* White made no attempt to explain this

to the employees, contending that White felt it should have a

copy of the BLS report to subytantiate this version. The re-

quested copy did not arrive until after the election. As the

Board points out, however, White could have informed the

employees of what it iearned from the BLS and could have

suggested that they could confirm the information by contacting

BLS themselves.” We agree that this was a_ reasonable

alternative, especially since it does not appear that the need for

clarification arose from anything more than an ambiguity.®

Thus the wage comparison did not amount to a substantial

misrepresentation of fact and White was not precluded from

making an effective reply, so that two of the elements established

in Hollywood Ceramics as necessary to set aside an election

are missing.

Totality of the Circumstances

White concludes its argument by asserting that even if the

two alleged misrepresentations would normally be insufficient to

6. There is no allegation that the BLS figures are themselves

misleading or that the Union reported them incorrectly other than

the ambiguity at issue.

7. White in its reply brief insists that it could not reply because

it is prohibited by the rule in National Labor Relations Board v.

Gisse! Packing Co., Inc., 395 U.S. 575, from making predictions of

the consequences of unionization. We are not suggesting that White

should have countered the handbill with its own predictions of what

wages would be if the Union won, but only that it could quite easily

have cleared up the ambiguity it perceived in the Union’s circular.

8. White argues that the reference to the BLS report, an official

U. S. Government publication, was an attempt to place the authority

of the Government behind the campaign literature, or to suggest it

had received official approval. On the contrary, the handbill was

clearly campaign literature distributed by the Union, and the refer-

ence to the BLS report served to identify the source of the figures.

A30

necessitate setting aside the election, they assume greater im-

portance considered in the context of this particular election.

The circumstances that purportedly aggravated the effect of

the circulars are the growth of the unit soon after the election,

the disrupting effect of the plant’s move on the campaign, the

importance of both issues raised by the offending handbills, and

the closeness of the vote. The first two of these arguments go to

the timing of the election. This issue was settled when, after a

full hearing, the Regional Director ordered the election to be held

July 22. As noted, White did not appeal from that decision,

In addition, the record shows that White waged a vigorous

campaign, distributing numerous anti-union articles and aggres-

sively phrased letters, as well as holding several meetings.

It is true that this Court has recognized that wages are a

central issue in a unionization decision (Peerless of America,

Inc., supra) and that the closeness of an election will be taken

into account in evaluating the probable impact of campaign

misrepresentations. Follett Corporation v. National Labor Rela-

tion Board, 397 F. 2d 91, 95 n. 3 (7th Cir. 1968). While these

are factors to be considered, they do not necessitate the

conclusion that the election must be invalidated. National Labor

Relations Board vy. Southern Health Corporation, supra, at

1125. On the facts of this case, even considering these additional

factors, we cannot say that the Board was wrong in its conclusion

that the election results should stand.

The order appealed from will be enforced,

A31

APPENDIX D.

UNITED STATES CoURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 12, 1979.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

WHITE AUTOMOTIVE CORPORATION, | On Petition for Review

Petitioner, and , se ar a

tion for Enforcement

No. 78-1680 si of an Order of the

NATIONAL LABOR RELATIONS BOARD, National Labor Re-

Respondent. lations Board.

ORDER

On consideration of the petition for rehearing filed in the

above-entitled case by petitioner White Automotive Corporation,

all of the judges on the original panel having voted to deny

the same,

Ir Is HEREBY ORDERED and that aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

A32

APPENDIX E.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Filed May 7, 1979

WHITE AUTOMOTIVE CORPORATION, )

Petitioner,

vs. '

NATIONAL LABOR RELATIONS BOARD,

Respondent. |

No. 78-1680

Before: CUMMINGS, SPRECHER and BAUER, Circuit Judges.

THis CAUsE was submitted to this Court upon a petition filed

by White Automotive Corporation, to review an order of the

National Labor Relations Board issued against said Petitioner,

its officers, agents, successors, and assigns on April 25, 1978,

and upon a cross-application filed by the National Labor Rela-

tions Board to enforce said Order. From the study of the briefs

and transcript of record and without oral argument, the Court,

on March 20, 1979, being full advised in the premises, handed

down its order granting enforcement of the Board’s Order.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by

the United States Court of Appeals for the Seventh Circuit that

the said order of the National Labor Relations Board in said

proceeding be enforced, and that Petitioner, White Automotive

een te OS i

ee et aN

A I tl ty na

A33

Corporation, its officers, agents, successors, and assigns, abide

by and perform the directions of. the Board in said order

contained.

/s/ WALTER J. CUMMINGS

Judge, United States Court of

Appeals for the Seventh

Circuit

A True Copy:

Teste:

/S/ KATHLEEN M. ENGEL

Deputy Clerk of the United States

Court of Appeals for the

Seventh Circuit.

(SEAL )