C. H. Wheeler Manufacturing Co.

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such election be set aside . (General Shoe Corporation, 77 NLRB 124. Cf. S. W. Evans & Son, 81 NLRB 161.) [Emphasis supplied.)- In view of the conceded fact that Price's remarks and the statements in the documents distributed to the employees on October . 24 and 25, contained no threat of reprisal or force or promise of benefit, said remarks and statements are protected by Section 8 (c) of the Act. Accordingly, the Trial Examiner recommends that the complaint be dismissed in its entirety.12 CONCLUSIONS OF LAW 1. The business operations of Hicks-Hayward Company, El Paso, Texas, ;con- stitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing -Workers Union of America, AFL-CIO, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] is Respondent did not violate the Act when it urged Its employees to repudiate the Union at the polls. National Furniture Manufacturing Company, Ino., 106 NLRB 1800; Dem- ing Company, 107 NLRB 1100. Price addresssing the employees on company time and property was not violative of the Act . Livingston ,Shdrt Corporation, et al., 107 NLRB 400. Wheelerweld Division, C. H. Wheeler Manufacturing Company and International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Peti- tioner. Case No. 4RC-3245. July 16,1957 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election exe- cuted on February 15, 1957, an election by secret ballot was conducted on March 4, 1957, under the direction and supervision of the Regional Director for the Fourth Region of the National Labor Relations Board among the employees in the unit herein found appropriate. Following the election, the parties were furnished a tally of ballots. The tally shows that of the approximately 105 eligible voters, 104 cast ballots; and that 57 ballots were for the Petitioner, 43 were against the Petitioner, and 4 ballots were challenged. On March 11, 1957, the Employer timely filed objections to conduct effecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investi- gation of the objections and, on April 30, 1957, issued and served on the parties his report and recommendation on objections, in which he found that the Employer's objections did not raise any material and substantial issues with: respect to the election and recommended that the objections be dismissed. On May 20, 1957, the Employer timely filed exceptions to the Regional Director's report and a separate brief, and on June 3, 1957, the Petitioner timely filed a brief in support of the Regional Director's report. 118 NLRB No. 82. WHEELERWELD DIVISION 699 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated- its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent cer- tain employees 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 following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees and shipping and receiving employees employed at the Employer's steel plate fabrication shop in Ambler, Pennsylvania, excluding all office and plant clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. 5. On March 2, 1957, the Petitioner mailed a three-page circular to the employees who were to vote in the election scheduled to be conducted on March 4, 1957, between the hours of 4 and 5 p. m. In addition, copies of the circular were also distributed to the employees at the Employer's parking lot on the morning of the election. A copy of the Petitioner's circular is attached hereto as an Appendix. The Employer contends that information contained in the three-page cir- cular was known by the Petitioner to be false and misleading and was intended to, and did, deceive the employees, thereby rendering a fair election impossible. More specifically, in its objections it pointed to the following sections of the circular as containing examples of such false and misleading information : (1) The section setting forth wage rates of three other companies; (2) The section purporting to indicate that the Employer's plant manager agreed to give certain members of the Petitioner a 35¢ an hour increase effective August 1, 1956; and (3) The section alleging that the Employer grants wage increases to only "the chosen few." As to (1), the Regional Director's investigation reveals that the Petitioner's circular set forth various classifications and wage rates established in labor agreements between it and three other companies, namely Acme Coppersmithing and Machine Company, Hammond Iron Works, and Boiler Erection and Repair Co. The Petitioner's circular accurately reflected all wage rates for the 13 classifications of employees found in the Acme contract. With respect to the Ham- mond Iron Works contract, the Petitioner's circular sought to com- pare the wage rates there with the wage rates for classifications pre- 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vailing in the labor agreement at Acme. In three instances, where the job classifications were similar at both Hammond and Acme, the rates and job classifications for Hammond were accurately set forth by the Petitioner. However, as most of the job classifications at Hammond did not exactly correspond to those existing at Acme, the Petitioner appears to have made several interpolations in order to compare the wage rates for persons performing equivalent work at both Hammond and Acme.' With respect to the Hammond wage rates, the Regional Director found, in one instance, namely the wage rate of $2.96 for "layerout," was inaccurately set forth in the circular. According to the contract it should have been $2.69.2 As to the wage rates of Boiler Erection and Repair Co., set forth in the Petitioner's circular, the Regional Director's investigation revealed some discrepancies. Of the 13 classifications listed in the circular, the Petitioner correctly cited the rates for 3 job classifications, and in 4 other classifications noted that Boiler Erection did not employ wny workers. With respect to five of the remaining classifications, the Petitioner, as it did with regard to the Hammond wage rates, interpolated Boiler Erection wage rates to the classifications of the Acme contract. This interpolation, as before, was based on work actually done by the employees.' It appears, however, that the Petitioner inaccurately set forth in the circular the wage rate of $2.80 for layerout at Boiler Erection. An examination of the con- tract reveals that the wage rate for layerout is actually from $2.20 to $2.40.4 The Regional Director's investigation further reveals that the Petitioner held two preelection meetings on January 14 and 20, 1957. Both meetings were attended by a substantial number of eligible voters. At both meetings copies of the existing labor agreements between the Petitioner and the above-named three companies were I In this regard the Petitioner set forth the wage rate of $2.49 paid the boilermaker and the welder first class at Hammond as corresponding to the job classifications of fitter, electric welder, machinist first class , and mechanics appearing in the Acme contract Petitioner set forth the wage rate of $2.34 paid the boilermaker second class at Hammond as corresponding to the job classifications of machinists second class , burners , and chip- pers appearing in the Acme contract ; and Petitioner set forth wage rates of $2.24 and $2.09 for helpers first class and helper second class , respectively, at Hammond as corresponding to the job classifications of drill press operator and crane operator , respectively , at Acme. The Regional Director found that the above interpolations were made because the work performed by the job classifications set forth at Hammond substantially corresponded to the work performed by the latter job classifications at Acme. a The Petitioner asserts that this was a typographical error. a The Acme contract contains more job classifications than does the contract with either Hammond or Boiler Erection . It thus appears that the work of the fitter, boilermaker, mechanic , and chipper classifications at Acme, is actually performed by the boilermaker first class or welder first class at Boiler Erection . Similarly , the work performed by the burner at Acme is performed by the boilermaker second class or welder second class at Boiler Erection , and the work of machinist first class at Acme is performed by the certified alloy welder at Boiler Erection. 4 The Petitioner contends that the foreman actually performs the layout work at Boiler Erection and receives $2.90 per hour , which is 10 cents per hour above the rate set forth in the circular. WHEELERWELD DIVISION 701 passed among the employees. During the discussion of these labor agreements, the Petitioner directed particular attention to the wage .rates appearing in the agreements. As to (2), the Regional Director's investigation discloses that in July 1956, an employer's association of outside field erection con- tractors negotiated a contract with the Petitioner . The Employer's plant manager signed an agreement with Petitioner's Lodge 13 cover- ing the outside erection employees. The association, and the Employer's plant manager, in separate but identical contracts , agreed to grant a 20-cent hourly wage increase effective August 1, 1956, and. an additional 15-cent hourly wage increase effective August 1, 1957.. At the two preelection meetings described above the contract signed. by the plant manager was also given to the eligible voters present, and was discussed at length. As to ( 3), or that section of the circular which allegedly asserts that the Employer grants wage increases only to "the chosen few," the uncontroverted evidence reveals that the Employer has granted 2 general wage increases to all employees since November 1955, and that about 60 percent of its employees received merit increases during the past 12 months. The Regional Director found that the Peti- tioner's circular stresses the traditional union objective of uniform wages and that its reference to "the chosen few" apparently related to the Employer's practice of granting merit increases. As to the foregoing sections of the circular , the Regional Director found the assertions made by the Petitioner therein were not forged campaign trickery, did not exceed the limits of legitimate campaign propaganda, and were not false and misleading in a way calculated to affect the free choice of employees . Accordingly, he concluded that the Employer's objections directed to those sections of the circular did not raise any material or substantial issues with respect to the election, and recommended that these objections be dismissed.. We agree with the conclusions of the Regional Director. The, controlling principle in cases such as that presented here is one the Board expressed in Merck & Co., Inc., 104 NLRB 891, at 892, and . recently reaffirmed in Allis-Chalmers Manufacturing Co., 117 NLRB 744: Absent threats or other elements of intimidation we will not undertake to censor or police union campaigns or consider the truth or falsity of official union utterances , unless the ability of employees to evaluate such utterances has been so impaired by the use of forged campaign material or other campaign trickery that the uncoerced desires of the employees cannot be determined in an election. Guided by this principle, the Board has found that mere falsity does not alone constitute campaign trickery which warrants setting aside 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an election.' It is only when one of the parties deliberately misstates material facts which are within its special knowledge, and where the employees do not have independent knowledge which will enable them properly to evaluate the misstatements, that the Board will set aside the election 6 Applying these principles to the instant case, it is clear that the assertions of the Petitioner in its circular were not such as to impair the free choice of the employees in the election. Here, on 2 different occasions, a substantial number of the employees personally examined the 4 collective-bargaining agreements alluded to in the. Petitioner's circular. Not only were they permitted to examine these documents, but their attention was specifically directed to the wage rates con- tained therein and lengthy discussions on all four contracts followed. In these circumstances, assuming that the Petitioner's subsequent com- parison of wage rates at three plants and a wage increase at the fourth plant was perhaps deliberately arbitrary and inaccurate in part, here the employees had independent knowledge which would enable them properly to evaluate the data set forth in the circular? Similarly, the employees also had personal knowledge of the Em- ployer's practice in granting wage increases. They knew, from their own experience, that the Employer did not grant wage increases only to "the chosen few." Indeed, they were recipients of two general wage increases granted all employees since November 1955. Under these circumstances, we find that the Employer's objections to the foregoing sections of the Petitioner's circular raise no material or substantial issues with respect to the election, and we hereby overrule them. In his report, the Regional Director did not determine whether the remainder of the Petitioner's circular contained other false and mis- leading information which impaired the free selection of a collective- bargaining representative. He found that the Employer failed to comply with Section 102.61 of the Board Rules and Regulations by not reasonably specifying the remaining parts of the circular which 5 Allis-Chalmers Manufacturing Co., supra; see Otis Elevator Company, 114 NLRB 1490; Horders, Incorporated, 114 NLRB 751. ° See The Calidyne Company, 117 NLRB 1026; Reiss Associates, Inc., 116 NLRB 217; Gummed Products Company, 112 NLRB 1092. 7The Employer appears to take exception with the Regional Director's finding that a substantial number of its employees attended the 2 union meetings at which the 4 col- lective-bargaining agreements were examined and discussed. The Employer brings forth no evidence which refutes this finding . Instead, it merely states that such finding "is be- lieved by the Employer to be erroneous." It further contends that a substantial number of employees in this case could mean only 10 or 20 employees out of a total unit of some 105 employees , or an insufficient number to have independent knowledge of the true facts in the collective-bargaining agreements ; and that a strong presumption is raised that if the rates and classifications in these agreements were discussed at all during the meetings, such rates and classifications were misrepresented. As the Employer offers no evidence to support its contentions , and as it points to no evidence which the Regional Director failed to consider on this issue, we find no merit in these exceptions, and we hereby overrule them. WHEELERWELD DIVISION 703 it alleged contained false and misleading information. The Employer excepts to this finding of the Regional Director, and contends that its "formal objection was sufficiently specific to warrant an investigation of all false and misleading information contained in the Union hand- out, and the Regional Director's failure to do so was arbitrary and unreasonable." Specifically, it points to the following sections of the circular as containing alleged falsities, which the Regional Director did not consider : a. A representation that the union had won a 90-cent-per-hour increase as a result of its strike at Sun Shipbuilding Corp.; b. An intentional misquotation of a letter written by the Employer to its employees; c. A representation that the Employer had discharged employees because they presented grievances and complaints; d. A representation that the union pays members $25 a week when on strike; and e. A claim that 75 percent of the working men and women are represented by unions. Without determining whether the remainder of the circular is properly before us at this time, it is clear that none of the above sections, or any other part of the circular, contains false and mis- leading information which warrants setting aside of the election. Thus, as to (a), it is clear that the Petitioner did not claim to have won a 90-cent-per-hour wage increase as a result of a strike at Sun Shipbuilding Corp. Instead, it stated, "the men in this plant [Sun Shipbuilding Corp.] since they have organized under the banner of this Brotherhood have received ninety (900) cents per hour increase in wages, many fringe benefits and far better working conditions." [Emphasis supplied.] As to (b), in a letter to its employees, the Employer stated, ". . . a big outside union cannot possibly under- stand the many problems of our business the way you and I can under- stand them"; whereas the Petitioner's circular in pertinent part, reads as follows : "In the letter of February 20, 1957, which was distributed to you by the Company-First, they state `no big union knows the problem of the employes [sic] ..."' Even assuming that the Pe- titioner was not merely paraphrasing the Employer's letter and inten- tionally misquoted it, we believe that the employees were clearly in a position to evaluate any such misquotation as they had received the Employer's letter and knew its content. As to (c), it appears that the Petitioner did not represent that the Employer had discharged employees because they presented grievances and complaints. In- stead, it stated, "Any employee who has a grievance and complains is informed that if you don't like it you need not work here and it is surprising to note how many of the old faces are missing because of discrimination for presenting grievances-of course, they don't 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,exactly put it that way but you employees are intelligent enough to know the procedure." Moreover, assuming, arguendo, that it can be inferred .from the foregoing that the Petitioner did convey the im- pression that the Employer discharged employees for presenting grievances, the employees were undoubtedly aware of the Employer's policies concerning grievances and complaints affecting their employ- ment status, and they were, we believe, in a position to properly evaluate such campaign material. As to (d) and (e), representations and claims such as that adverted to constitute campaign propaganda which the Board does not undertake to censor or police, and which the employees were capable of evaluating in choosing a bargaining representative." 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-bar- gaining representative of the employees in the appropriate unit. [The Board certified International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, as the designated collective-bargaining representative of the employees of the Employer in the appropriate unit described in paragraph 4 above.] 8 See Barber Colman Company, 116 NLRB 24; Dallas City Packing Company. 116 NLRB 1609; Gong Bell 1Vlanufacturing Co., 114 NLRB 342; and cases cited in footnote 5. APPENDIX To The Employees of Wheelerweld : With-the National Labor Relations Board conducting a representa- tion election on Monday, March 4, 1957, to determine whether or not you are to be represented by the Boilermakers' Union and with the confused literature distributed during the past several weeks by the Company, I believe it only proper that the writer attempt to clarify some of the remarks made by the Company. We did not intend to give out a lot of literature and propaganda to you men. We desired to have a clean election and even though it is late we feel that you should be enlightened as far as some of the ridiculous charges which have been made against this Brotherhood by your Company. In the letter of February 20, 1957, which was distributed to you by the Company- First, they state "no big union knows the problem of the em- ployes"-Labor represents over seventy-five percent of the working men and women of this country who organized in order to be recog- nized and to have their problems understood. Companies only see their side of the question while Labor representatives are men who came up from the ranks and are familiar with the working men and -WHEELERWELD DIVISION 705 women's problems they represent. For instance, in your type of shop, the. work comes under the trade. claims of this Brotherhood, and we are familiar with the problems of the men who work in this type of shop whereby anything you might fabricate must be erected in the field and most of this work is erected by members of this Brotherhood. Second, in answer to the Company's remarks "about the strike at the Sun Shipbuilding Corporation, Chester, Penna."-the men in this plant since they have organized under the banner of this Brotherhood have received ninety (900) cents per hour increase in wages, many fringe benefits and far better working conditions. This strike was not called by the International Brotherhood but was voted solely by the employees of the Sun Shipbuilding Corporation. Third, the Company stated that strikes are no good either for the employees or the Company. We are in accord with the Company's view on this statement. However, employees in a plant do not vote to go on strike unless they find the Company is uncooperative in help- ing to make their working conditions and their wages comparable to existing conditions. * Further, when a strike is called by a group of employees, they vote to strike and there is no such thing as this Inter- national Brotherhood forcing men out on strike. The strike vote must be taken by the employees themselves in order to decide whether they desire to take drastic action in an attempt to have the Company .recognize the seriousness of improving their wages and working con- ditions. The International Brotherhood pays a member $25.00 per week when he is on strike so you can see that the Union does not want strikes but only as a last resort. Fourth, The Company mentions "friendly personal relations"- "YOU CAN'T BUY FOOD FOR YOUR FAMILY WITH `FRIENDLY PERSONAL RELATIONS."' Fifth, the Company mentions in their letter about the robbing of health and welfare funds by unions-It is somewhat amazing how a big Company can attempt to confuse the minds of their employees in order to keep them from organizing especially on a question such as this. The C. H. Wheeler Company knows the procedure of our health and welfare plan for they themselves contribute to it for the members of Lodge #13 whom they employ. They know that they themselves send their contributions to the Marsh and McLennan Company in Chicago, who handles the funds for this Brotherhood and all matters are handled directly between the Marsh & McLennan Company, the member and/or the hospital or surgeon. This International Brother- hood does not touch one cent of any monies in a health and welfare fund. C. H. Wheeler Company is really guilty of misconstruing true facts which they themselves know-another way of keeping their employees confused. 450553-58-vol. 11-8-46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sixth, The Company states that there has never been a strike in their plant at Ambler, Pennsylvania. We believe this. Any employee who has a grievance and complains is informed that if you don't like it you need not work here and it is surprising to note how many of the old faces are missing because of discrimination for presenting griev- ances-of course, they don't exactly put it that way but you employees are intelligent enough to know the procedure. In 1952, 1955, and again in 1957, we were invited to attend a meeting of the employees of this Company because they felt they needed repre- sentation in order to correct their working conditions and wages and when men ask for help there must be a reason because the same condi- tions exist today and existed in 1952. We have never approached the employees in this plant for organizational purposes but as I men- tioned above we have been invited on three different occasions to come in. I listened attentively to the problems presented-very poor, poor, poor wages, which still exists and everytime your committee has gone into the Company to negotiate something for the employees it has always wound up that there would be a certain increase for a few which has again been offered to you. No one knows what the other makes-there are no classifications and established rates-everything is under the table-if you are not the chosen few, no matter how good you are-no increase. Unions demand that you be paid for the class of work you do and to be recognized each time an increase is granted. The Company claims you boys get a very good wage, well, when we make wage rate claims we show them in writing-do the rates below compare with the rate you are presently getting? Classifications Acme Conper- smithing Hammond Boller Erection and Machine Company Iron Works Co. Layoutman--------------------------------------------------- $2.60 $2.96 $2.80 Fitter--------------------------------------------------------- 2.30 2.49 2.25 Electric Welder----------------------------------------------- 2.30 2.49 2.35 Boilermaker ------------------ ------------------------------- 2.10 2.49 2.25 Machinists,1st------------------------------------------------ 2.25 2.49 2.60 Machinists , 2d------------------------------------------------ 2.15 2.34 None Mechanics---------------------------------------------------- 2.10 2.49 2.25 Electricians --------------------------------------------------- 2.30 2.49 None Burners------------------------------------------------------- 2. 10 2.34 2. 10 Crane Operators---------------------------------------------- 1.80 2.09 None Chipper------------------------------------------------------ 2.40 2.34 2.25 Drill Press-------------------------------------------------- 1.85 2.24 None Helper---------------------------------------------------- 1.80 2.24 1.70 NoTE.-Negotiations begin in March to secure increase in wages and fringe benefits for Acme Copper- smithing & Machine Company. Sometime in the month of March this Company is going to erect a Condenser for the Philadelphia Electric Company at 28th and Christian Streets whereby there has been a tentative arrangement made THE ENGLANDER COMPANY, INC. 707 to send members of this Brotherhood to your Company to erect this work. This International Brotherhood has had signed agreements with your Company for several years to erect their work in the field and • you men know that some of the members of Lodge #13 have worked in the shop from time to time during the slack period in the field and now this same Company has the audacity to state that they do not want you to affiliate with this Brotherhood and on the other hand will shout to the high heavens as to the good relations they have with this Brotherhood in erecting their field work. Mr. Robert Benwell who wrote the letter date February 20, 1957, to you, is the same man who sat in on the negotiations between the C. H. Wheeler Company and this Brotherhood in July 1956 and agreed to give the members of Local 13-a thirty-five cent an hour increase ef- fective with the new agreement-August 1, 1956. Now you men should stop and think of the conditions and wage rates Mr. Benwell has offered to you and then decide if your company is being fair with you. Now you can realize why the C. H. Wheeler Company does not want you organized by this International Brotherhood. After all the years that you men have been fighting trying to get good working conditions and good wage rates-take this opportunity to improve your wage rates and working conditions and vote "YES" on Monday, March 4,1957-YOUR VOTE IS SECRET-NO ONE BUT YOU YOURSELF KNOWS HOW YOU VOTED, BE- CAUSE THIS REPRESENTATION ELECTION IS CON- DUCTED BY A REPRESENTATIVE OF THE UNITED STATES GOVERNMENT. Very truly yours, (Signed) John A. Kennedy, JOHN A. KENNEDY, Representative. The Englander Company, Inc. and Upholsterers International Union of North America, AFL-CIO, and Local 5 of Upholster- ers International Union of North America, AFL-CIO and Washington-Oregon District Council of Furniture Workers, AFL-CIO International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Warehousemen's Local Union No. 117, AFL-CIO and Washington-Oregon District Council of Furniture Workers, AFL-CIO. Cases Nos. 19-CA- 1306, 19-CA-1307, and 19-CB-416. July 17,1957 DECISION AND ORDER On October 16, 1956, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that 118 NLRB No. 84.