10-3639 NLRB v. E.A. Sween Co.

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Labor
Misrepresentation

A finding by the NLRB that a union’s statement was misleading, but not grounds to vacate an election is affirmed.

“E.A. Sween urges focus on the first sentence: ‘“THE U.S. SUPREME [sic] HAS HELD THAT ALL EXITING [sic] TERMS AND CONDITIONS OF EMPLOYMENT BY LAW MUST REMAIN THE SAME UNTIL AND DURING CONTRACT NEGOTIATIONS OR APPROVED BY EMPLOYEES.”’ Irrespective of whether it is deceptive or misleading, the sentence is certainly not a ‘forgery’—a counterfeit—of a Supreme Court decision. It is not explicitly attributed to the Supreme Court; neither does the quoted portion reflect language or syntax a learned justice would possibly use.”

“Failing that, E.A. Sween argues that the first sentence led employees to believe that the quoted text was the holding of a Supreme Court case, a deception that justifies our adopting the Sixth Circuit’s exception to Midland in circumstances ‘where no forgery can be proved, but . . . the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and . . . their right to free and fair choice will be affected.’ NLRB v. Hub Plastics, 52 F.3d 608, 612 (6th Cir. 1995) (quoting Van Dorn Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984)). As this court has previously recognized, however, there is no need to determine the limits of Midland where the ‘situation . . . fall[s] squarely in the heartland of the Midland doctrine—statements regarding a campaign issue that voters could easily recognize as propaganda.’ Uniroyal Tech. Corp., Royalite Div. v. NLRB, 98 F.3d 993, 1003 & n.29 (7th Cir. 1996) (citing NLRB v. Affiliated Midwest Hosp., 789 F.2d 524, 528-29 & n.3 (7th Cir. 1986); NLRB v. Chicago Marine Containers, 745 F.2d 493, 498-500 (7th Cir. 1984)). Far from artfully deceptive, the first sentence makes no sense. Apparently the author recognized as much because the second sentence explains the first with an essentially correct statement of the law: ‘THAT STATEMENT MEANS THAT IF YOU ARE DUE A SCHEDULED RAISE AT ANY TIME DURING THE CONTRACT NEGOTIATION PERIOD, BY LAW THE COMPANY MUST GIVE YOU THAT RAISE.’ See Advo System Inc., 297 N.L.R.B. 926, 940 (1990); Arrow Elastic Corp., 230 N.L.R.B. 110, 113 (1977), enforced, 573 F.2d 702 (1st Cir. 1978). Whether the first sentence is misleading or simply meaningless, the second sentence clearly explains what the Union intended to convey.”

Application Granted.

10-3639 NLRB v. E.A. Sween Co.

On Application for Enforcement of an Order of the National Labor Relations Board, Lefkow, J.

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