On August 4, 1967, thе American Bakery and Confectionary Workers Int’l Union, Local 264, AFL-CIO, petitioned for certification as the bargaining representative for a proposed unit of some 100 permanent production and maintenance employees of the Mainе Sugar Industries’ plant in Easton, Maine. At the subsequent unit determination hearing, the Company urged that some 300 seasonal production and maintenance employees should also be included, but because there was insufficient evidence that the seasonal wоrkers had a high expectancy of being rehired,
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the Board
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determined that they should not be included in' the bargaining unit.
On the day prior to the election in February 1968, the Union sent a letter to all unit employees, beginning with a mention of the achievements of “American Unions” and including а list of the benefits recently obtained through union representation at the Revere Sugar Refinery in Boston, Massachusetts. The Company had no opportunity to point out that those benefits had not been obtained by the American Bakery Union but by another union not involved in the pending election. On the following day the Union won 65 to 32.
After the Company’s objections to the conduct of the election — based on the allegedly misleading election-eve letter— were rejected by the Regional Director in March, the Uniоn was certified the exclusive bargaining representative for the unit. The representation proceeding ended on April 3, 1968, when the Board denied the Company’s request for review of the Regional Director’s decision. The Company’s subsequent refusal to bargain gave rise to an unfair labor practice complaint by the General Counsel. The Company’s proffer at the unfair labor practice hearing of “previously unavailable or newly discovered” evidence concerning the propriety of the bargaining unit was rejected as untimely by the Trial Examiner. On motion by General Counsel, summary judgment was granted on the unfair labor practice complaint. The Board affirmed the summary judgment, agreeing that the proffer of “new evidence” was untimely but apparеntly holding that even if such evidence had been admitted, the exclusion of seasonal workers was not inappropriate.
The Board’s petition for enforcement of its order to the Company to bargain with the Union raises two points of contention: thе legality of the Union’s election-eve letter, and the propriety of the bargaining unit. The former, while dis-positive in that our conclusion of illegality requires that the election be set aside, requires less discussion. The second issue requires more elaboration and may be thought to be technically unnecessary. But if a new election is sought and directed, the issue will again arise; the problem, having been fully briefed and argued, seems serious enough for discussion at this time.
We do not consider the Company’s argument that the Boаrd erred in failing to make its own determination concerning the legality of the letter.
See
Pepsi-Cola Buffalo Bottling Co. v. N.L.R.B.,
As to the letter itself, we observе that it is always a dangerous game for a union to pass off another union’s work as its own by campaign literature which lists the benefits obtained at another plant without making clear that those benefits were negotiated by another union. In Zarn, Inc.,
In our case, the initial reference to “American Unions” and thеir achieve *945 ments renders it suspect as a deliberate invocation of the first word in the petitioning union’s name. The assertion regarding “American Unions,” with the “U” capitalized, though it is not done so elsewhere in the flyer in referring to unions generally, appears in the very first line following the heading, “American Bakery and Confectionary Workers.” That the reference is to a different union is far from obvious. Such a tactic might be overlooked in an election campaign involving workers with a long and varied union background. This campaign, however, in an industrial enterprise new to the area, involved employees without such a background and thus more likely to be misled. Moreover, subsequent generic references to the accomplishments achieved in the specific industry through “uniоn representation” comes too close to Zarn to be distinguished by lay employees, lacking a lawyer’s eye. While the writer of this opinion would, with some misgivings, defer to the judgment of the Regional Director that the letter did not fatally taint the election, the majоrity of the court, noting that the Director did not even appear to recognize the problem, feel that the bounds of discretion were exceeded and that the election must be set aside.
If a new election were to be held, the Company’s objection to the composition of the bargaining unit would remain. It is, in our view, a well founded objection, and one with implications for orderly procedure in representation cases. It is well settled that an employer may, as a defense to a refusаl to bargain complaint, challenge the composition of the bargaining unit.
E. g.,
Pittsburgh Plate Glass Co. v. National Labor Relations Board,
The Company’s “new evidence” was that 80 per cent or more of the 1967 seasonal employees had been employed during 1966 and that 90 per cent of the peak work force in November 1967 consisted of recalled employees. While this evidence obviously could not have been offеred at the unit determination hearing in August 1967, we are satisfied that it was available to the Company at least by January 1968.
It appears, however, that the appropriateness of the bargaining unit is not a matter which may be raised in support of objections to an election or in a request to review since such issue is unrelated to the conduct of the election (see 29 C.F.R. § 102.69(c)); thus, any Company attempt to present its new evidence during the post-election hearing in March would have been excluded as irrelevant to the questions then at issue. Moreover, the Board’s published rules make no provision for reconsideration or reopening of a Board order in a representation proceeding, 2 despite such a provision for unfair labor practice orders. See 29 C.F.R. § 102.48(d). The Company’s motion for reconsideration of thе Board’s action in the representation proceeding was made in August 1968 *946 only after such course had been suggested by the Trial Examiner and cannot properly be used to suggest that the Company was aware of the availability of such motion since Januаry 1968. 3
The Board concedes the lack of any provision authorizing motions to reopen or reconsider a Board order in a representation proceeding but contends that the Board has frequently allowed such motions.
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However, we are аware of only one decision where a party’s failure to make such motion was used against him, as the Board seeks to use such failure here. Westinghouse Electric Corp.,
Since the Company proffered its “new evidence” at the first opportunity contemрlated by the Board’s present rules and regulations and since such evidence was clearly germane to the appropriateness of the unit, the Trial Examiner was in error in refusing to admit it. The Board on review, however, apparently decided that even if such evidence had been admitted, the unit without seasonal employees was still not inappropriate.
Although the Board’s only expressed reason in its first decision for excluding seasonal workers — insufficient evidence of high expectancy of recall— was substantially overcome by the Company’s new evidence, we do not say that the exclusion of seasonal workers must therefore be inappropriate. There may be additional, as yet unarticulated reasons why such exclusion is still apprоpriate. As we have said many times, the Board enjoys a broad discretion in such determinations.
E. g.,
Banco Credito, etc. v. N.L.R.B.,
Enforcement denied.
Notes
. The plant, under construction since 1964, began production in January 1967 with an 18 day “season” of processing sugar beets, after which many employees were laid off. In July, some 75 seasonal workers were hired to refine raw cane sugar, a substantial — though undetermined — number of whom had worked during January- By the time of the unit determination hearing in August 1967, the Company had about 100 permanent employees, with an expectation of hiring some 300 seasonal employees for the upcoming 6-8 week sugar beet season. The Company projected that the season would become 14 weeks long in a few years and *944 that thе 300 seasonal workers would have a high expectancy of being rehired each year, thus creating a “community of interest” between the seasonal workers and the permanent workers who did essentially the same work.
In excluding the seasonal workers frоm the unit, the Board stated that it was “unable to find on the basis of the July recall alone that a sufficiently large number of temporary seasonal employees has a demonstrable expectation of being rehired.”
For that reason, the seasonal workers were excluded.
. Had the unit determination in this case beеn made by the Regional Director, a request for Board review might have provided an avenue for presentation of new evidence. 29 C.F.R. § 102.67(b) and (c). However, this unit determination was transferred to the Board for initial decision, 29 C.F.R. § 102.67(h), thus apparently precluding any suсh request for review.
.
See, e. g.,
Daniel Construction Co., Inc.,
. In his Motion for Summary Judgment addressed to the Trial Examiner, the General Counsel also argued that the Company could have presented its new evidence by a Unit Clarification Petition, 29 C.F.R. § 101.17. This contention was not relied on by either the Trial Examiner or the Board in granting the motion, and was not reiterated in the Board’s briefs submitted to us, which seemed to concede the lack of any formal rule providing for reopening of Board unit determinations. Such petition presupposes the existence of a certified representative of a bargaining unit, and thus could not have been utilized in this case until April 1968. Moreover, we find no indication that such petition was intended or has been used as a method for obtaining review of the propriety of a bargaining unit just created. Wе therefore attach no significance to the fact that the Company did not avail itself of this doubtful procedure. Cement Co.,
. The parties presented several eases where the Board has ruled with regard to the exclusion or inclusion of seasonal workers. The Union points out that in every case where the Board excluded seasonal workers, the union involved had requested such exclusion. United Foods, Inc., Dulaney Foods Division,
Moreover, the cases indicate that expectancy of recall has not been mentioned as a factor in several of the cases, and that in a few of them, seasonal workers were included in the absence of any evidence of a high expectancy of recall.