Robberson Steel Co.

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be so timed as to afford an employer the opportunity to reply. More- over, on its face, the exception to the rule of the Merck case quoted above refers to "campaign trickery" that renders the employees in- capable of evaluating the utterances in question ; it does not refer to conduct which may place an employer at a disadvantage insofar as replying is concerned. Here the alleged false statements involved only the Petitioner 's characterization of certain actions of the Em- ployer affecting the terms and conditions of employment , of the very employees to whom the campaign propaganda was directed and who, therefore, were in a position to evaluate its Thus, we find that the Petitioner did not engage in "campaign trickery " within the meaning of the above exception and accordingly adopt the Regional Director's recommendation and overrule the objections. As we have overruled the objections to the election , and as the tally of ballots shows that the Petitioner received a majority of the valid ballots cast, we shall certify the Petitioner as the collective -bargaining representative of the employees in the appropriate unit. [The Board certified the International Association of Machinists, AFL, as the designated collective -bargaining representative of the em- ployees of the Employer in the appropriate unit described in para- graph numbered 4, above.] ® The Employer in support of its position relies on Gummed Products Company, 112 NLRB 1092, in which the Board set aside an election on the basis of certain union mis- representations. That case involved a petitioner's misstating to employees of the employer the wages it had secured through negotiations with another company. The petitioner reiterated its misinformation in the face of the employer's denial of its accuracy. How- ever, that case is clearly not applicable here for as pointed out in the decision therein the petitioner was dealing with information peculiarly within its own knowledge. In the instant proceeding, as noted above, the alleged false statements dealt with matters of which the employees had personal knowledge. In this respect the case at bar is distinguish- able from N. L. R. B. v. Trinity Steel Co., 214 F. 2d 120 (C. A. 5), cited by the Employer. Robberson Steel Company and Shopman's Local Union 546 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL, Petitioner. Case No. 16-RC-1689. October 11) 1955 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election en- tered into between the parties and the Regional Director for the Six- teenth Region on June 1, 1955, an election by secret ballot was con- ducted on June 6, 1955, under the supervision of the Regional Direc- tor among the employees in the appropriate unit at the Employer's Oklahoma City, Oklahoma, plant. Upon completion of the election, 114 NLRB No. 65. ROBBERSON STEEL COMPANY 345 the' parties were furnished with a tally of ballots which showed that of approximately 394 eligible voters, 145 cast valid ballots for the Petitioner, 213 against, and 11 were challenged. On June 10, 1955, the Petitioner filed timely objections to conduct affecting the results of the election. The objections contained 4 speci- fications of alleged improper conduct in substance as follows : (1) Ap- proximately 14 of 28 "Notices of Election" posted in the Employer's plant had been defaced by having an X placed in the NO voting box of the sample ballot contained in such notices; the Board agent did not, as requested by Petitioner, remove all such notices, and the Em- ployer had not replaced the notices with other unmarked copies it had in its possession; (2) no "Notice of Election" had been posted in the foundry department; (3) the Employer distributed a bulletin and letter to employees shortly before the election implying that em- ployees could expect a wage adjustment on or about July 1, 1955; 'and (4) the distribution of the above bulletin on June 6, 1955 (the day of the election), was in violation of the Board's rule set forth in Peerless Plywood Company.' In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation and, on June 29, 1955, he issued and duly served upon the parties his report on objections to the election in which he recommended that the Board overrule the object- tions. Thereafter, on July 18, 1955, the Petitioner filed its exceptions to report on objections. On July 20 the Employer filed a brief in sup- port of the Regional Director's report. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. As stipulated by the parties, the following employees of the Em- ployer constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the-Act: All produc- tion and maintenance employees and truckdrivers at its plant located at 1401 N. W. Third Street, Oklahoma City, Oklahoma, excluding all office clericals, guards, professional employees, and supervisors as de- fined in the Act. In conformity with the Regional Director's recommendation, we find no merit in any of Petitioner's objections. (a) With respect'to objection No. 1, the investigation disclosed that 2 hours before the election began all official "Notices of Election" 1107 NLRB 427. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted in the plant were, on the Petitioner's insistence, inspected by representatives of the Petitioner, the Employer, and the Board, that at this time it was discovered that 14 of the notices were defaced by having an "X" placed in the "No" box and 1 by having an "X" placed in the "Yes" box. It further disclosed that the Board agent erased all "X" marks written in pencil and marked out those in ink and that the Employer, upon the request of the Board agent, replaced all such defaced ballots to the extent that it had extra copies available. The Petitioner in its exceptions argues that the Employer permitted the notices to remain posted after they had been defaced, failed to re- place them with other notices available for that purpose, and hence the election should be set aside on the basis of the Board's ruling in Allied Electric Products Inc.2 In that case, the Board held that reproduction and distribution by an Employer of the Board's official ballot defaced with an X in the vote "No" box was grounds, upon objec- tion by a petitioner, for setting aside an election. The ruling there is clearly not applicable here for the Petitioner nowhere contends, and no evidence was adduced, that the Employer was responsible for, the defacement of the ballots. Further, the Petitioner submitted no evi- dence that the Employer had knowledge of the defacement prior to the inspection tour on the day of the election or that it failed to re- place, insofar as possible, the defaced notices as requested by the Board agent. Under these circumstances we agree with the Regional Director that there is no merit in Petitioner's objection No. 1.3 Accordingly we overrule this objection. (b) As the Petitioner did not except to the Regional Director's find- ing that there was no merit in objection No. 2, we adopt the Regional Director's fording and overrule that objection. (c) In its objection No. 3, the Petitioner objects to certain state- ments contained in a bulletin and letter, dated respectively June 6, 1955, and June 2, 1955, which were distributed to the employees. In the bulletin, the Petitioner finds objectionable the statement that "the Unions' Organizers and Robberson Steel employees know that since 1946 we have made our annual wage adjustments effective about July 1st." With regard to the letter it claims as improper the statements that "each year your Company has voluntarily increased wages before this time of year" and that "the Union knows that by filing a request for election, your Company is stopped from making any wage adjust- ments until the Union question has been settled." The Regional Director's investigation disclosed that the Employer had given annual wage increases since 1946 with the exception of the 2109 NLRB 1270 3 See Lloyd A. Fry Roofing Coinpany, 108 NLRB 1297. ROBBERSON STEEL COMPANY 347 years 1949 and 1951 on the following dates : July 19, 1954; June 15, 1953; Octobero27,1952; December 11 and July 24, 1950; April 5, 1948; April 21, 1947; and February 25, 1946. While there is some dis- crepancy between the Employer's statements in the letter and bulletin on the one hand and its past practices concerning annual wage ad- justments, we do not believe that these discrepancies are of sufficient import to --arrant setting aside the election. The statements re- ferred to a practice of granting wage increases to employees which had with 2 exceptions in 9 years been customarily accorded them. As such we find, in accord with the Regional Director, that these statements as to wage adjustments contained no promise of benefit within the mean- ing of Section 8 (c) and did not interfere with the election 4 We likewise find unobjectionable the Employer's statement that no wage adjustments could be made "until the Union question has been settled." This statement contained no threat or promise of benefit. It did not condition wage adjustments upon a particular election re- sult. It merely stated what the Employer conceived to be its duty, namely noninterference during the period in which the question con- cerning the representation of its employees was being resolved. Such a statement clearly falls within the protection of Section 8 (c) of the Act.5 Furthermore, all the above statements were made in reply to union campaign propaganda contrasting unfavorably the wages paid by the Employer with those paid by a local unionized plant. Thus the Employer did no more than answer such propaganda made by the Petitioner by stating its own views on the matter, without im- pinging upon the employees' right to vote as they pleased without fear of retaliation or expectations of G special benefit. In view of the foregoing, we adopt the Regional Director's recom- mendation and overrule Petitioner's objection No. 3. (d) In its objection No. 4, the Petitioner contends that the Em- ployer violated the Board's ruling in Peerless Plywood Company through its distribution of a bulletin to all employees on June 6 within 24 hours of the election. The Regional Director found this objection without merit. We agree on the ground that the rule in that case does not apply to election campaign literature.8 Accordingly, we overrule Petitioner's objection No. 4. As we have overruled the objections to the election, and as the tally of ballots shows that the Petitioner failed to receive a majority of the ballots cast in the election, we shall issue a certification of results to that effect. 4 See Elsner Ct ocery Company, 93 NLRB 1614 c The Lux Clock Hanufacturtng Company, Inc, 113 NLRB 1194. 8 Hudson Hosiery Company, 98 NLRB 7. Supra. 8 Peerless Plywood Co , supra, at 430, Crown Drug Company, 110 NLRB 345 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD e [The Board certified that a majority of the valid ballots was not cast for Shopmen's Local Union 546 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL, and that this union is not the exclusive representative of the production and maintenance employees at the Employer's Oklahoma City, Oklahoma, plant.] MEMBER MURDOCK took no part in the consideration of the above Decision and Certification of Results of Election. John Deere Harvester Works of Deere & Company and Interna- tional Die Sinkers Conference on behalf of its East Moline Die Sinkers Lodge No . 470, Independent, Petitioner. Case No. 13-RC-4446. October 11, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Julius N. Draznin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. The Petitioner seeks to sever a craft unit of diesinkers, trim- mer diemakers, Keller machine operators, `die polishers, and planer machine operators 2 employed in the Employer's toolroom department at its East Moline, Illinois, operations. These employees comprise 34 out of approximately 100 employees in that department, all of whom have been represented since 1942, as part of a production and main- tenance unit by the Intervenor (International Union, United Auto- mobile, Aircraft, and Agricultural Implement Workers of America and its Local 856, UAW-CIO). , The Petitioner has made an adequate showing of interest in the unit hereinafter found appropriate. 2 The composition of the unit requested by the Petitioner was variously expressed. In its petition , the unit requested is "all employees working on dies or parts of dies used in the manufacture of and completion of forgings " At the hearing, the Petitioner explained that it was seeking to represent the above employees as a highly skilled group of employees who "are a separate and distinct craft of their own . . We are not seeking a depart- ment ; we are seeking a craft unit." 114 NLRB No. 67.