These two cases, consolidated on appeal, involve an order by the National Labor Relations Board requiring ExCell-O Corporation (Company) to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (Union). After determining that the Company's plant in Elwood, Indiana was an appropriate unit for collective bargaining purposes, the Board conducted an election in 1964; the Union won the election; in 1965, after administrative processes including a full hearing, the Board certified the Union as the exclusive collective bargaining representative for most of the plant's employees.1 The Company declined to bargain with the Union in order to obtain a judicial test of the validity of the Board's certification,2 which the Company still contended was erroneous because the Union had engaged in activity that rendered the holding of a fair election impossible. In 1970, the Board found that the Company's refusal to bargain violated Secs. 8 (a) (1) & (5) of the National Labor Relations Act;3 the Board ordered the Company to bargain with the Union on request.4

In No. 24,577, the Union petitioned for review of that part of the Board's order which denied special compensation for employees' losses for the period during which the Company refused to bargain with the Union after it had been certified. On March 19, 1971, we entered an order granting the Union's motion for summary reversal of the Board's denial of special relief to the extent of ordering a remand.5 We will revert to that order subsequently. In No. 24,715, the Company petitioned for review of the order to bargain, and the Board cross-applied for enforcement of its order.6

The disposition of this case turns on the validity of the Board's certification of the Union as collective bargaining representative for the Company's Elwood plant, and on the propriety of enforcing the employer's obligation to bargain despite the long delay between the initial refusal to bargain and the Board's decision. We uphold the certification and the Board's decision that the Company violated the Act, and we enforce the Board's order directing the Company to bargain with the Union on request.

The Company's primary claim is that a newsletter mailed to the employees by the Union's International Representative on October 19, 1964, three days before the election, contained substantial misrepresentations which undermined the fairness of the election, and hence the propriety of the Board's certification of the Union on the basis of the election. In balancing "the right of the employees to an untrammeled choice, and the right of the parties to wage a free and vigorous campaign," the Board sets aside an election only if a misrepresentation "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 substantial impact on the election;" in addition, the Board will consider whether "the party making the statement possesses intimate knowledge of the subject matter," and whether the employees themselves "possessed independent knowledge with which to evaluate the statements."7 The Hearing Officer, whose decision was affirmed by the Board, concluded that there was no such substantial misrepresentation about material facts and that insofar as there were questionable statements, they were within the rule of Hollywood Ceramics, supra note 7, that the permissible latitude of election campaigning does not require absolute precision in statements, and that ambiguous or inarticulate messages which may be subject to different interpretation, "like extravagant promises, derogatory statements about the other party, and minor distortions of some facts" such as "frequently occur in communication between persons," do not constitute the kind of misrepresentation that leads the Board to set aside an election.8 We conclude that insofar as this determination rests on a factual predicate there is support in substantial evidence, and insofar as it represents a determination as to the order that is appropriate in the light of this factual predicate there is no showing of abuse of the Board's discretion in determining whether to certify the representative chosen in the election.9

1. Our ultimate conclusion is that we affirm the Board's determination that the statements in the newsletter to which the Company takes exception are not the kind of substantial, material misrepresentation which invalidates an election. The newsletter is slanted rather than spurious or fraudulent, and for the most part there is some basis in fact for the statements made.

2. The newsletter said the Company discontinued cost of living wage increases and manipulated the annual improvement factor (AIF) for wage increases. The Company concededly did discontinue a separate review of cost of living allowance, and while it says to the court that these were not terminated but were rather integrated as part of a larger perspective for annual wage review, there is at least a legitimate question whether this change may not have smothered the quality and extent of the cost of living adjustment. The ultimate point is that the Union is stressing that there are shortcomings in the Company's handling of these matters, and that it can do better for the workers. This is the very stuff of electioneering, and hyperbole is tolerated unless wholly spurious.

3. As to the newsletter's claim that as a result of Ex-Cell-O's unilateral changes its workers suffered a loss of 14 cents per hour, the arithmetic does show-as Company counsel conceded-that the average annual amount of increase was 6-8 cents per hour during 1956-1959, whereas the data for later years show in years of: 1960: nil; 1961: 4 cents; 1962: 4-6 cents; 1963: 5-7 cents; 1964: 5 cents. Again there is a basis in fact for an assertion of a cumulative 14 cent discrepancy. And this cannot be condemned as the kind of fraudulent misrepresentation that vitiates an election, even though the Company has some explanations and qualifications that might well be more impressive to someone conducting an auditing function.

4. The newsletter asks the question whether it is the Company's plan to replace women with men in the performance of certain tasks. The same question was posed two months earlier in a newsletter that pointed out that men on layoff had been recalled, while over 40 female employees on the seniority list had not been recalled.

So far as assertions are concerned, the newsletter says that some of the jobs filled by new male hires were formerly performed by women. The Board found a basis in fact, sufficient to avoid a misrepresentation so substantial as to undercut the election, in the fact that all hires for September 1963-October 22, 1964, were males, that one of these men was hired as a floor inspector, and that in the past at least some duties of a floor inspector had been performed by a woman.10 We are satisfied that the evidence in support of the factual predicate (see note 10) is sufficient to avoid any conclusion that the Board's order is invalid in law.

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While the Company has explanations as to why it changed its processes so that some vapor blast and belt-packing jobs formerly handled by women came to be performed by men, it was not improper for the Board to conclude that the Union was within legitimate campaigning in stressing the result-that women were not rehired-without pursuing the detailed explanations.

5. We further note that while the Company's time to reply to the newsletter might not have been sufficient if there had been gross and fraudulent misrepresentations, in the absence of such material the Board was within its discretion in taking into account that the Union had two months earlier identified the broad issues it intended to pursue, and that the Company had ample time to develop the factual data concerning its programs and policies for presentation to the employees. And the Company did have more than one full day after it became aware of the newsletter to prepare last minute material.

6. We are not to be taken as supporting each and every statement in the Union newsletter. We merely say the Board was well within its discretion in concluding that the newsletter was not the kind of outright, material misrepresentation which warrants overturning an election.

A major contention of the Company relates to the exclusion of evidence proffered that particular employees cast their ballots under the influence of newsletter representations. We agree with the Board that the inquiries as to whether union (or employer) conduct vitiates an election are properly conducted on an objective standard, without probing the mental processes and understandings of the voters, except perhaps in special circumstances such as where employees have been subjected to physical force or threats of force.11

Finally, the Company contends that a bargaining order is not appropriate when the Union involved was selected in an election held almost six years before, and there has been a substantial turnover in employees.

The time delay is unusual and vexing-reflecting principally three years in which the Board considered the Union's request for additional relief. In hindsight, the Board should have promptly ordered the bargaining as at least partial relief.

However, the critical fact is not the time delay, but the turnover.12 As to the propriety of a bargaining order in the face of employee turnover, the authorities establish that all the courses available entail substantial disadvantages, and the Board's order lies within the zone of its discretion, with the employees able to avoid any continuing prejudice through the subsequent filing of a decertification petition.13

In this case, the Union petitioned for review of the Board's decision not to grant special compensatory benefits as a "make-whole" remedy for the period when the Company refused to bargain with the Union after it was certified.

Previously, in Tiidee Products-I,14 this court held that when the Company's objections to the election were patently frivolous and its refusal to bargain with the Union when certified was a clear and flagrant violation of law, the Board had authority to grant affirmative relief in addition to a cease and desist order and was required, in consequence of the mandate of Sec. 10(c) that the Board take such affirmative action as will effectuate the policies of the Act, to explain on what basis it justified the issuance of a cease and desist order without "make-whole" or other affirmative relief as a permissible exercise of its remedial function.

On March 19, 1971, we granted the Union's motion for summary reversal in the case at bar,15 concluding that the Board's order denying relief was in conflict with Tiidee Products-I, for the following reasons:

(1) The Board, explicitly refusing to adhere to Tiidee Products-I, erroneously concluded that it had no statutory authority to award "make-whole" compensation.

(2) This court took account of the rule that denial of affirmative relief is appropriate where there is a debatable question. United Steelworkers v. NLRB [Quality Rubber Mfg. Co.], 139 U.S.App.D.C. 146, 148-149, 430 F.2d 519, 521-522 (1970). And we were aware that the Board indicated as an alternative ruling that Ex-Cell-O's violation was not flagrant. However, as we analyzed the Board's decision under review, this ruling was apparently based on the assumption that an employer seeking judicial review of an election could never be charged with a flagrant violation, in the absence of a discriminatory discharge or disregard of employees' rights other than failure to bargain with their representative. Neither the Board's Decision and Order nor the Trial Examiner's Initial Decision contained any analysis of the objections of the Company to the Union's certification. The Board stated that it could not undertake an inquiry into the issue whether the Company's objections to the election were frivolous or debatable. We disagreed and held that under Tiidee Products-I the Board had discretion to grant supplementary relief if the Company's objections to the election and certification were frivolous.

When we were considering the motion for summary reversal and remand of this case, the Board had presented a motion for temporary relief requiring bargaining pendente lite, but the record of the certification proceedings had not been filed.16 At that stage we deemed it appropriate that the Board, which had already considered and rejected the Company's objections to the Union's certification, determine whether those objections were of a frivolous or debatable nature. We therefore remanded for further proceedings, including determinations whether Ex-Cell-O's objections to the certification were frivolous or fairly debatable, and whether "make-whole" compensation or some other affirmative remedy is appropriate.

With our arranging for expedition of consideration of the appeal by this court, the sequence of events has brought before us at an early juncture the full record of both the certification and unfair labor practice proceedings. From our study of the certification record it is now plain that the Company's objections to the certification fall in the "fairly debatable" rather than the "frivolous" or "bad faith" category. Even "taking into account the limited ability of a court to assume as a judicial function * * * the distinctive discretion assigned to the agency,"17 we think it manifest that any proceedings by the Board on remand would result in a denial of affirmative relief.

Accordingly, while the majority of this court believes the Board erred in its analysis of the applicable legal rules, it would be a futile act to insist on a remand which could not meaningfully change the result. In this case the Board's legal error resulted in no prejudice to the Union. Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411-412, 379 F.2d 453, 465-466 (1967). While we adhere to the principles set forth in our March 19, 1971 opinion, we conclude that these principles, as applied to the record in this case, require vacating the March 19, 1971 order of remand. That order is vacated and the decision of the Board denying affirmative compensation is affirmed.

One final note. In Tiidee-I a majority of this court was particularly concerned with the need for an effective remedy, at least in the case of an employer who fails to bargain notwithstanding an election and certification. That opinion stressed the need for a procedure and approach to remedy that obviated success for the frivolous objector,-the kind of consideration invoked by the Supreme Court in California Department of Human Resources Development v. Java, 402 U.S. 121, 91 S. Ct. 1347, 28 L. Ed. 2d 666 (1971). The question of how and to what extent the principles of Tiidee may be implemented is under consideration by the Board.

But without regard to Tiidee, all members of this court agree that expedition in Board determinations is desirable, especially in regard to elections. The decision to hold an election is not immediately reviewable at the instance of the employer, and while withholding of review at this stage may have some disadvantages its wisdom is attested by the consideration that in a substantial number of cases the Union loses the election, thus mooting any employer need for review. But it would be appropriate for the Board to review its procedures for those cases when the Union wins the election and the Company does not acquiesce, toward the objective of moving with expedition to identify those cases that raise no substantial problem and to enter a bargaining order, even in advance of its decision on other matters that may require further consideration.

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The petitions for review filed by the Union (No. 24,577) and the Company (No. 24,715) are denied. The Board's cross-application for enforcement of its order in No. 24,715 is granted.

So ordered.

The representation election here involved occurred 6 1/2 years ago. The result was close. A switch of five votes would have changed the result. At the time of the 1964 election there were 208 employees in the bargaining unit whereas in 1970 when the Board issued its decision there were 530 employees in the unit of whom only 134 had been eligible to vote in the 1964 election. That election thus related to personnel that are no longer present and to outdated issues and a controlling majority of new employees who had no opportunity to vote will be be affected by the stale vote of a small minority. Because of the delay of the case in reaching us and the prejudicial consequences referred to, my first preference would be to order a new election.1 However, since my colleagues do not agree, I come to consider the company's challenge to the election. It is my view that the electioneering by the union was very close to the borderline of being prejudicial in a material degree. Some of the statements by the union were tricky distortions and overstatements of the truth and were aimed at the ignorance and gullibility of the workers and their natural desire for higher wages but they were not complete misrepresentations. The impropriety of the charges was also compounded by the timing of their release-the day before the election. I do not agree that the company had sufficient time to answer the charge and to properly disseminate their answer. However the contents of the release related to an issue which was not completely new to the pre-election campaign. Thus while I consider it particularly unworthy for one seeking to represent workers in a fiduciary capacity to indulge in such questionable tactics to secure their acquiescence, I cannot say there was not some basis in fact for the Board's determination that the statements were not such a substantial departure from the truth, or that they did not have such a substantial impact on the election, as to justify setting it aside. With these qualifications I concur in Part I of the opinion and in the result announced in Part II. I also concur in the suggestion that the extraordinarily long delay which preceded the Board's disposition of this case should call for some review by the Board of the procedures which caused it in an attempt to determine whether the consequences of delay which are here present might be alleviated in the future.