Montrose Hanger Co.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montrose Hanger Company and District #128, International Association of Machinists, AFL-CIO, Petitioner. Case No. 4-RC-3408. March 13, 1958 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On October 25, 1957, pursuant to a Decision and Direction of Election issued in the above-entitled proceeding,' an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fourth Region among the employees in the unit found appropriate by the Board. Upon the conclusion of the election, the parties were furnished with a tally of ballots w}iich shows that of 108 ballots cast, 30 were for the Petitioner, 73 against, and 5 were challenged. The challenged ballots are insufficient to affect the outcome of the election. Thereafter, the Petitioner filed timely Objections to conduct affecting the results of the election. On Jan- uary 16, 1958, following an investigation, the Regional Director issued his report and recommendations on objections, in which he found merit in one of the Petitioner's objections, but'found no merit in the remaining objections and recommended that they be overruled, and further recommended that the election of October 25, 1957, be set aside and a new election ordered. Thereafter, the Employer filed timely exceptions to the Regional Director's report. 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 [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : In the objection found by the Regional Director to have merit, the Petitioner contended that the Employer interfered with the election by distributing to the employees just before the election a paycheck stub, along with the paycheck, which listed payroll deductions that the Employer would make if the Petitioner won the election 2 In his investigation, the Regional Director found that along with their pay- check the Employer distributed to the employees a paycheck stub which states the following under the column for miscellaneous deduc- tions : "Union Dues, $30.00 A Year (at least) For Dues Alone PLUS Deductions for Fines and Assessments !" Next to this on the stub is a large arrow pointing to the deductions column, on which is printed the statement, "THIS WILL BE ON YOUR PAY CHECK IF THE UNION GETS IN." i Not published. 2In its objections, the Petitioner contended that the statements on the check stubs concerning payroll deductions were false and also contended that their circulation by the Employer violated the Board's 24-hour rule as enunciated in Peerless Plywood Com- pany, 107 NLRB 427. The Regional Director found no merit in these contentions, which are discussed in greater detail in the text. 120 NLRB No. 15. MONTROSE HANGER COMPANY 89 The Regional Director found that the objections concerning the distribution of the paycheck stubs raised 3 interrelated questions : (a) Was the $30 amount on the check stubs false and misleading cam- paign propaganda? (b) Was the timing of the distribution calcu- lated to, and did it, interfere with the free choice of the employees? (c) Was the means used a violation of the Board's Peerless Plywood rule? As to (a) -the accuracy of the alleged $30 deduction-the Regional Director found that the only sister local of the Petitioner in Montrose, Pennsylvania, the city involved herein, had dues of $2.50 per month, or $30 per year. He further found, pursuant to information furnished by the Petitioner, that of 22 other sister locals of the Petitioner within a 100-mile radius of Montrose, 4 charged less than $2.50 per month' and 18 charged between $2.50 and $3 per month. He also found that, while no fines or assessments had been exacted in the past by any of the Petitioner's sister locals, the constitution of the Petitioner's parent authorized assessments and fines. Accordingly, the Regional Director concluded that the statements made on the check stubs were not false or misleading. He found, moreover, that the Petitioner's preelection leaflets covered in some detail the question of dues, fines, and assess- ments and that the employees thus had the opportunity to evaluate the Employer's statements. Accordingly, the Regional Director con- cluded that the statements on the check stub did not, in themselves, interfere with the free choice of the employees. As to (b)-the timing of the distribution-the Regional Director found that Friday, the day of election, was the regular payday for employees. He also found that the Employer accelerated the actual hour of the distribution of the paychecks without notifying the Board agent conducting the election. The Employer informed the Regional Director that this was done because the election was being held around noontime, the usual hour of distribution, and it believed that, if it waited until after the election, many employees would leave the plant without their checks, since the working day was over for most of them at noon. Citing Peerless Plywood,4 wherein the Board expressly reserved to parties the privilege of distributing campaign literature on company premises at any time before an election, the Regional Director concluded that the timing of the distribution did not interfere with the free choice of the employees. In the absence of any exceptions thereto, we adopt the foregoing findings. However, with respect to (c)-the means utilized by the Employer in distributing its antiunion literature-the Regional Di- 8 The Regional Director also found that the constitution of the International Associ- tion of Machinists required dues of not less than $2 a month. 4 The Regional Director also cited the Comfort Slipper (112 NLRB 183) case, where the Board held that the distribution of campaign literature need not be so timed as to afford other parties a chance to reply. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector found that the Employer used a method that "is more than argument, presentation of information, or persuasion, it is a device which exploits the fear of personal loss by manipulation of the docu- ments used in normal pay procedure." He also found that it is "real- istic to rule that the Employer may not use a form indispensable to employees in the securing of their pay for the purpose of promoting fear of personal monetary loss in the imminent prospect of a Board election." I The Regional Director therefore concluded that "under the circumstances of this case the use of an imprimatur on the normal payroll documents to influence the outcome of an election causes economic apprehensions and thereby falls below the standards of campaigning to a level which impairs the free and untrammeled ex- pression of choice by the employees," within the rule of Gummed Products.' Accordingly, the Regional Director recommended that this objection be sustained, the election of October 25, 1957, be set aside, and a new election ordered. In its exceptions, the Employer contends, inter alia, that the dis- tribution of the attachments to the employees' pay checks did not interfere with the employees' free choice of a bargaining represent- ative in the election. We agree. In the course of its campaign to win the adherence of the employees, the Petitioner distributed several circulars which, as found by the Regional Director, discussed in some detail its policies regarding dues, fines, and assessments. In opposition to these statements, the Employer distributed the paycheck stub, at issue here, in which it stated its prediction as to the cost to the employees of their adherence to the Petitioner. This prediction was found by the Regional Director to be, in substance, accurate. We agree with this finding, but we cannot agree that the medium used by the Employer to disseminate its prediction was, nevertheless, such as to interfere unduly with the employees' freedom of choice. While the Board has heretofore set aside elections because of the content of preelection literature, it has not considered the form of such literature or the means used to dis- seminate it as per se ground for setting aside an election.' Moreover, contrary to the Regional Director, we do not find that this case falls within the Gummed Products' rule. In order to set aside an election under this rule, there must be misrepresentation of vital facts and :The Regional Director also emphasized at this point that the Employer had altered the usual hour for paying employees, "apparently in order that this type of electioneering material might be in the hands of the employees just piior to the opening of the polls." However, as stated above, lie had previously found that the timing of the distribution had not interfered with the election 0 112 NLRB 1092 ' Cf. Bata Shoe Company, Ine, 116 NLRB 1239, involving a mtsrep, esentation on a paycheck stub of the amount that would be deducted if the union won the election The Board members who participated in that case were equally divided on the question whether this was sufficient basis for setting aside the election. 8112 NLRB 1032 RIO DE ORO URANIUM MINES, INC. 91 the party making the misrepresentation must be in an authoritative position to know the true facts. Here, as the Regional Director found, there were no misrepresentations. Moreover, it seems manifest that the employees would realize that the Employer was not likely to have first-hand knowledge of the amount of Petitioner's dues and assessments and they would be free to weigh the statements of the Employer against those made by the Petitioner.9 Finally, it is clear that, as any future deductions for dues, fines, or assessments will have to emanate from the Petitioner, the employees could not reasonably have construed the statement on the paycheck stubs as a threat of reprisal by the Employer. Consequently, we find that the check stubs distributed by the Em- ployer did not impair the employees' freedom of choice, but were merely permissible campaign propaganda. We therefore overrule the Regional Director's findings as to this objection and do not adopt his recommendation that the election herein be set aside. In view of the foregoing, and upon the record as a whole, we find that the Petitioner's objections do not raise substantial or material issues affecting the results of the election and they are hereby over- ruled.10 Accordingly, as the Petitioner failed to secure a majority of the valid ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for District $128, International Association of Machinists, AFL- CIO, and that said organization is not the exclusive representative of the Employer's employees in the unit found appropriate.] 9 Cf F. H. Snow Canning Company, Inc., 119 NLRB 714. 10 In view of our disposition of this case , we do not find it necessary to pass upon the other exceptions raised by the Employer. Rio de Oro Uranium Mines, Inc. and Local No. 16, International Hod Carriers, Building and Common Laborers Union of Amer- ica, AFL-CIO, Petitioner. Case No. 33-RC--609. March 13, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Sixteenth Region on July 9, 1957, among the employees in the unit described in the stipu- lation. At the conclusion of the election, a tally of ballots was fur- nished the parties. The tally shows that of the 40 eligible voters, 39 cast valid ballots, of which 20 voted for and 19 against the participat- ing labor organization. 120 NLRB No. 14.