Stewart-Warner Corp.

STEWART-WARNER CORPORATION 1153 Challenges: The Petitioner, as already noted, excepted to the Re- gional Director's recommendation that 15 challenged ballots be opened and counted.3 These 15 ballots, as the Regional Director found, were cast either by regular seasonal employees who were em- ployed at the time of the election or by temporarily laid-off employees who had a reasonable expectancy of further employment. The facts relating to the status of the voters in question, as found by the Re- gional Director, are substantially undisputed. It is Board policy, long established, that such employees are'eligible to vote in a Board- directed election. Accordingly, we shall adopt the Regional Direc- tor's recommendation that these 15 challenges be overruled and that the ballots so challenged be opened and counted. Direction IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, the Regional Director for the Fifteenth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of Warren Johnson, James Johnson, Ellison Flagg, George Isabel, Jr., Andrew Mason, Joe W. Hudson, Daniel Rutledge, Jimmy D. Traylor, Amos Dodds, C. L. Mane, Sam McNeil, Robert Grays, Walter Knox, Joseph L. Key, Willie Lewis, and Otis Johnson and shall thereafter prepare and cause to be served upon the parties a sup- plemental tally of ballots, including therein the count of the ballots described above. 8 These ballots were east by the following employees : Warren Johnson, James Johnson, Ellison Flagg, George Isabel , Jr., Andrew Mason, Joe W. Hudson , Daniel Rutledge, Jimmy D. Traylor, C L. Mane, Sam McNeil, Robert Grays , Walter Knox, Joseph L. Key, Willie Lewis, and Otis Johnson. STEWART-WARNER CORPORATION and INTERNATIONAL UNION OF Er c- TRICAL, RADIO & MACHINE WORKERS, CIO, PETITIONER. Case No. 13-RC-2667. February 6, 1953 Supplemental Decision and Certification of Representative Pursuant to a Decision and Direction of Election issued by the Board herein on August 13 1952,1 an election by secret ballot was held on September 11, 1952, under the direction and supervision of the Regional Director for the Thirteenth Region. Upon completion of the election, the Regional Director issued and duly served upon the parties a tally of ballots which showed that of approximately 3,833 eligible voters, 3,520 cast valid ballots, of which 1,700 were in favor 1 100 NLRB 608. 102 NLRB No. 130. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of IBEW, 1,553 were in favor of the Petitioner, 69 were in favor of IAM, 144 were against participating labor organizations, and 54 bal- lots were challenged; there were also 35 void ballots. No choice hav- ing received a majority of the valid ballots cast, and no objections having been filed, the Regional Director, on October 2, 1952, conducted a runoff election with the Petitioner and IBEW on the ballot. Upon completion of this election, the Regional Director served upon the parties a tally of ballots which showed that of approximately 3,839 eligible voters, 3,594 cast valid ballots, of which 2,052 were in favor of II3EW'V, 1,387 were in favor of the Petitioner, and 155 ballots were challenged; there were 43 void ballots. On October 7,1952, the Petitioner filed timely objections to conduct affecting the results of the runoff election. Thereafter, in accordance the Board's Rules and Regulations, the Regional Director inves- tigated the Petitioner's objections, and on November 26, 1952, issued and served upon the parties his report on the objections. In his re- port, he recommended that certain objections be overruled, but he found merit in other objections and recommended that the election be set aside on those grounds. The Employer and IBEW timely filed exceptions to the Regional Director's report insofar as it recommended that the election be set aside,2 and the Employer filed a supporting brief .3 The Regional Director based his recommendation that the election be set aside on the following substantially uncontroverted findings: On August 26, 1952, the Employer and IBEW, which has been recognized and bargained with by the Employer since 1950, jointly submitted requests for rulings by the Wage Stabilization Board as to whether (1) current WSB regulations permitted payment of the 4-cent increase provided in their existing contract to be effective October 6, 1952, without prior approval, (2) whether, if the contract should be canceled or terminated before October 6, the 4 cents could be paid with WSB approval, and (3) whether, if the contract were canceled, prior WSB approval would be required for any increase. On August 29 the WSB regional counsel replied by a letter stating, in pertinent part: The wage adjustment due on the first Monday in October, 1952, may only be placed in effect under the terms of a deferred in- crease or improvement factor agreement which is also in effect. In the event the contract under which the 1951 increase was 2 As no exceptions were filed to the Regional Director's recommendation that certain objections be overruled, we hereby adopt that recommendation. 8 After issuance of the Board' s decision in Great Atlantic cf Pacific Tea Company, 101 NLRB 1118, the Employer filed a motion for leave to file a further brief, which it attached. The motion is hereby granted. STEWART-WARNER CORPORATION 1155 granted has been terminated or cancelled, there is no existing agreement or policy under which the 1952 increase may be granted. Therefore, the cancellation of the 1950 contract prior to the first Monday in October, 1952, would prohibit the granting of the four cents (4¢) increase under the terms of Resolution No. 94. However, if the same appropriate clause is carried over in- to a new contract between the parties, indicating the same poli- cies and providing for the same deferred increases, then it may be placed in effect in the same way and under the same conditions as in the prior contract. If the total amounts available under General Wage Regulations 6 and 8 have been used and there is no provision in being for a deferred wage increase, prior Wage Stabilization Board approval would be required before any further increases could be granted. This ruling was first publicized by IBEW in a leaflet issued on September 10, the day before the first election, which quoted part of the ruling, and stated that if the Petitioner won and terminated the IBEW contract, the employees would lose the 4-cent increase due on October 6, and probably would not be able to get any increase at all. On September 22 the Petitioner replied to this in a leaflet accusing IBEW of lying, and challenging the Employer to speak for itself and to tell the employees what it would do when the Petitioner won the runoff.4 Thereafter, on September 26, 6 days before the runoff election, the Employer took the following actions. 1. It mailed each of its employees a special delivery letter signed by its director of industrial relations, advising them of the importance of the choice before them and expressing the Employer's concern over the probability of a strike if the Petitioner won. 2. It published oil the front page of its house organ, the Stewart- Warnerite, an election message from its director of industrial relations "frankly recommending" that the voters select IBEW and giving reasons for such recommendation. 3. In the same issue of the Stewart-Warnerite, this news item ap- peared on the front page : 4 The text of this statement , so far as quoted by the Regional Director, states : And now they (IBEW) are lying-trying to make you believe that an IUE-CIO victory will mean the loss of your contract, vacation, 4¢ raise, etc. . . . In their lying pay-cut leaflets the IBEW seems to be speaking for the Stewart- Warner Corporation. Now STEWART-WARNER is a large corporation, quite capable of speaking for itself. Stewart Warner has never been bashful in the past. WHY are they bashful now I ! ! Why doesn't Stewart-Warner issue a statement on wage cuts now and tell you what they will do when IUE-CIO wins the runoff??? Unless Stewart-Warner wants to join the IBEW in their campaign of outright lies, no such statement will be forthcoming. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WAGE INCREASES AND WAGE STABILIZATION The 4 cent increase due Monday, October 6, cannot be paid if the IUE wins the election next Thursday and terminates the IBEW contract, according to a ruling of Leon A. Rosell, Regional Counsel of the Wage Stabilization Board. The wording of the ruling is as follows : The wage adjustment due on the first Monday in October, 1952, may only be placed in effect under the terms of a de- ferred increase or improvement factor agreement which is also in effect. In the event the contract under which the 1951 increase was granted has been terminated or cancelled, there is no existing agreement or policy under which the 1952 increase may be granted. Therefore, the cancella- tion of the 1950 contract prior to the first Monday in Oc- tober, 1952, would prohibit the granting of the four cents (40) increase under the terms of Resolution No. 94. The increases given by the company to date under the terms of the IBEW contract exceed the maximum permitted under Wage Stabilization regulations. In the event the current IBEW contract is terminated no increase of any kind is per- mitted under Wage Stabilization regulations without prior ap- proval of the Wage Stabilization Board. According to A. H. Busch, company attorney, there are no existing regulations which would permit any general wage increase in the event of a contract termination. The Regional Director also found that the Employer continued to accord exclusive recognition to IBEW after the Board's decision and direction of election, and continued to refer to the "IBEW con- tract" and the "current IBEW contract" in articles appearing in the Stewart-Warnerite. As already indicated, the IBEW won the runoff election held on October 2, 1952. On October 6 the Employer put the 4-cent increase into effect. On the basis of the above facts, the Regional Director found that the Employer interfered with the election, in substance because (a) it exceeded the bounds of simple preference when it frankly recom- mended a vote for IBEW and gave reasons therefor; (b) it im- properly continued to accord recognition to IBEW during the cam- paign; and (c) its statement regarding the WSB ruling, and the manner and timing thereof, constituted a threat of loss if the Peti- tioner won and promise of benefit if IBEW won. The Employer and IBEWW' do not substantially controvert the Regional Director's findings of fact set forth above. The Employer, STEWART-WARNER CORPORATION 1157 however, alleges certain additional facts, including allegations that the Petitioner was aware of the complete text of the Wage Stabili- zation ruling sometime before the runoff election, and that it ex- amined the documents in the Wage Stabilization office before the election. As previously mentioned, the Employer and IBEW ex- cept to the Regional Director's conclusions and recommendations. We find merit in the exceptions. With respect to the Regional Director's first ground for recom- mending that the election be set aside, the Employer's "frankly rec- ommending" IBEW and giving reasons therefor, we believe that an employer does not improperly interfere with an election by express- ing a preference for 1 of 2 competing unions, and accompanying his statement with reasons, where, as here, the reasons themselves are not improperly or coercively set forth.' Turning to the Employer's continued recognition of IBEW and its references to the existing contract between these two parties, the Employer had recognized IBEW before the inception of this pro- ceeding, and had entered into a contract, which, while found in the Board's original decision in this case not to be a bar, extended to, 1953. The Board has held, contrary to the Regional Director, that it is proper for an employer to continue to accord recognition to an_ incumbent union during a campaign 6 The final ground of the Regional Director's recommendation was his finding that the manner, timing, and content of the Employer's announcement of the WSB ruling constituted a threat of loss if the Petitioner won and a promise of benefit if IBEW won. However, we perceive nothing improper in either the Employer's timing of its comments, 4 days after the Petitioner's own request that it com- ment and 6 days before the runoff election, or in the publication of those comments in the Employer's newspaper. As to the actual content of its statement regarding the WSB ruling, including the assertion that no increase could be given if the Petitioner won the election and terminated the contract, and its quotation of the WSB ruling, the statement was clearly correct as far as it went. However, the Employer omitted a significant part of the ruling, namely the sentence stating that if the same clause were carried into a new contract between "the parties, indicating the same policies and providing for the same deferred increases," it could be put into effect in the same manner as the prior contract. Under See Standard Oil Company of California, 90 NLRB 1465 . Cf. Joy Togs, Inc., 83 NLRB 1024 ; N. L. R. B v. O'Keefe 4 Merritt Manufacturing Co., 178 F. 2d 445 (C. A. 7). Harrison Sheet Steel Co. v. N. L. R. B , 194 F 2d 407 ( C. A. 7), and Sunbeam Corpora- tion, 99 NLRB 546, cited by the Regional Director, are not controlling, as in those cases the statements of preference were accompanied by conduct violative of Section 8 (a) (2) of the Act. " See Electric Auto-Lite Co., 89 NLRB 1407 ; Westinghouse Electric Co., 91 NLRB 955. 250983-vol. 102-53-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that sentence, it is possible that if the Petitioner had won the elec- tion and become a successor "party" to a contract with the Employer, the 4-cent increase could have been effected. The Employer also failed to state that the increase would almost necessarily go into effect regardless of the outcome of the runoff election, because of the timing of that election 7 Therefore, the impression given the em- ployees by the Employer's statement that the 4-cent increase would inevitably be lost by the Petitioner's victory and termination of the contract was essentially a misrepresentation, but one which could have been easily corrected by the Petitioner's calling attention to the exact terms of the statement itself. The Petitioner, which had requested the Employer to comment on the matter, was aware, or had the opportunity to become fully apprised, of the entire WSB ruling, and it must have had knowledge of the Board's certification procedure. Moreover, the Petitioner had 6 days before the runoff election to correct the misrepresentation, but failed to do so. It is noteworthy that the Petitioner could have stated that it did not intend to, or could not, cancel the contract be- fore October 6, and therefore the two contingencies mentioned could not occur in time to cancel the increase. The Board does not undertake to police or censor propaganda used in the elections it conducts, but rather leaves to the good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements 8 We are of the opinion that the Employer's misrepresentation was not such as to in- fluence employees improperly or prevent their exercise of a free choice, as the employees knew and could evaluate the source of the informa- tion,e and the Petitioner, which was adversely affected by the state- ments, appears to have had the knowledge and ample opportunity to correct any inaccuracy, but did not do so 10 Accordingly, as we have found no merit in the Petitioner's objec- tions, and, as the tally shows a majority of the ballots were cast for IBEW, we shall certify it as the exclusive bargaining representative of all the employees in the appropriate unit. Certification of Representatives IT Is HEREBY CERTIFIED that International Brotherhood of Electrical Workers, AFL, Local 1031, has been designated by a majority of the 7 Because the runoff election was scheduled for October 2, and the period for filing objections would not end until October 7, it appears certain that the Petitioner could not have been in a position to terminate or cancel the contract on October 6, the date set for the increase , even had it won the election , as it would not yet have been certified. 8 Trinity Steel Company, Inc., 97 NLRB 1486; Gray Drug Stores, Inc., 95 NLRB 171. 9 Cf. The Timken-Detroit Axle Company, 98 NLRB 790. 30 Gray Drug Stores, Inc , supra; Round Mountain Gold Dredging Corp, 92 NLRB 859. STEWART-WARNER CORPORATION 1159 employees of Stewart-Warner Corporation, Chicago, Illinois, in the unit heretofore found by the Board to be appropriate for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, as amended, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other con- ditions of employment. MEMBER MURDOCK, dissenting : I cannot agree with my colleagues that the Regional Director erred in his ultimate recommendation that the election should be set aside because of employer interference. Without considering the first two grounds on which the Regional Director relied, in my opinion he was clearly correct in finding that the Employer's statement regarding the WSB ruling constituted a threat of loss if the IUE won and a promise of benefit if the IBEW won, which prevented a free election. The majority opinion contains all the pertinent facts and reasons why the Board should not permit such an election to stand. The Em- ployer quoted out of context from a WSB ruling and made statements with respect thereto which conveyed the misrepresentation to its em- ployees that a victory for the IUE in the election would mean a loss of the 4-cent an hour wage increase which was due under the contract a few days after the election. The majority's conclusion that "the Employer's misrepresentation was not such as to influence employees unduly or prevent their exercise of a free choice," cannot be recon- ciled with established doctrines. The Board has long recognized that an employer's promise to grant or withhold wage increases, tied to an election or its outcome, prevents a free choice of a bargaining repre- sentative. Had this Employer simply said to the employees : "If you select the IUE I will not give you a wage increase," under the prec- edents this Board would clearly have had no hesitation in setting the election aside. But in substance and effect this is exactly what the Employer said here, with the addition of a reason-that a WSB ruling would preclude giving the increase. My colleagues fail to give any plausible explanation why the addition of a reason for a threatened loss of a wage increase-a misrepresentation of the scope of a govern- mental ruling-serves to extinguish the undue influence on the em- ployees which the Board has heretofore recognized a threatened loss of a wage increase has upon them. The majority refer to the fact that "the employees knew and could evaluate the source of the infor- mation." I cannot see how that helps their position. The source of the information was the Employer, and if he tells employees a WSB ruling will preclude a wage increase if they select an outside union instead of the incumbent, the natural inference is that he is telling them the truth. My colleagues also refer to the fact that the Board 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not police election propaganda of "parties" to elections, but leaves it to "opposing parties" to correct falsehoods. They overlook the fact that this doctrine has reference to "parties" to elections whose names are on the ballot; an employer is not such a party.1' The as- serted fact that the IUE could have corrected the Employer's repre- sentation but failed to do so is of no controlling significance. The majority's reference to this also seems to partake of the nature of a. "waiver" argument. But the Board has recently announced that the "waiver" doctrine with respect to objections to elections will not be applied to employer misconduct occurring subsequent to the notice of hearing in the case.12 Moreover, I cannot see how the mere fact of issuance of a statement by the IUE that the Employer was in error in representing that the WSB ruling would preclude the wage in- crease if the IUE won the election, would have neutralized the dam- age done by the Employer's misrepresentation. It would be obvious, to the employees that the Employer would act upon his own view of the effect of the WSB ruling no matter how loudly the IUE might have proclaimed that the Employer was in error as a matter of law. Only a complete and timely disavowal by the Employer of the mis- representation and half truths he published to his employees could have restored to them the strict laboratory conditions heretofore so vigorously insisted upon by this Board in representation elections.. A threat by an Employer of loss of a substantial wage increase to his employees if they select the union he opposes is hardly conducive to a free choice of bargaining representative contemplated by the Act. For the foregoing reasons I would sustain the Regional Director's: determination that there was merit in the IUE's objection based upon. the Employer's threat of a loss of the 4-cent per flour wage increase and that the election should be set aside. 11 The two cases cited in footnote 8 of the majority opinion on this point both involved, alleged untruthful statements by unions. 12 Great Atlantic cf Pacific Tea Company, 101 NLRB 1118. TRESCOTT COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MA- CHINISTS, PETITIONER. Case No. 3-CA-455. February 9, 1953 Decision and Order On October 13, 1952, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the 102 NLRB No. 111.