Dartmouth Finishing Corp.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The members of Employers Council are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Employers Council, as well as its members, is an employer within the mean- ing of Section 2 (2) of the Act. 3. Milton Jeanney is a representative within the meaning of Section 2 (4) of the Act. 4. The Respondents are labor organizations within the meaning of Section 2 (5) of the Act. 5. The Respondents have not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (B ) of the Act. [Recommendations omitted from publication.] Dartmouth Finishing Corporation and Textile Workers Union of America, AFL-CIO, Petitioner. Case No. 1-RC-4996. March 31, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board on October 4, 1957,1 an election by secret ballot was conducted on October 31, 1957, under the direction and supervision of the Regional Director for the First Region. After the election the Regional Director served upon the parties a tally of ballots which showed that of approximately 171 eligible voters, 163 cast ballots, of which 95 were for the Intervenor 2 and 68 were for the Petitioner; 7 ballots were challenged and 1 ballot was void. The challenged ballots were insufficient to affect the election results. On November 7, 1957, the Petitioner timely filed objections and supplemental objections to conduct affecting the results of the elec- tion. The Regional Director investigated the objections and on December 5, 1957, issued and duly served upon the parties his report on objections, recommending that the Petitioner's objections be over- ruled and that the Intervenor be certified as the exclusive bargaining representative in the unit found appropriate by the Board. The Petitioner timely filed exceptions to, and the Intervenor filed a memo- randum in support of, the Regional Director's report. On January 16, 1958, the Board issued an order directing the Regional Director to make additional findings and issue a supplemental report. The Regional Director conducted a further investigation and, on January 27, 1958, issued and duly served upon the parties his supplemental Not published. a Local No. 59, Chauffeurs, Warehousemen and Helpers , a/w International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. The Board haying been notified by the AFL-CIO that it deems the Teamsters' certificate of affiliation revoked by convention action, the identification of this Union is hereby amended. 120 NLRB No. 44. DARTMOUTH FINISHING CORPORATION 263 report on objections? No exceptions to the Regional Director's supplemental report have been received. Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man Leedom and Members Rodgers and Jenkins]. Objection (1) is based upon the Petitioner's assertion that, on October 28, 1957, the Employer posted a circular on its plant bulletin board which informed employees that they would receive an 8-cent per hour increase in wages, retroactive to June 28, 1957, if they selected the Intervenor in the election. The Petitioner contends that the circular also stated in effect that if the employees chose the Petitioner as their bargaining representative, they would be deprived of the wage increase. The Regional Director's investigation disclosed that 1 to 2 weeks before the posting of the Employer's circular, the Petitioner mailed a letter, dated October 14, 1957, which was prepared by the Peti- tioner's counsel, to about 50 percent of the employees and distributed to employees at the Employer's plant gate. The letter expressed the understanding that after the petition was filed in this proceeding, the Employer had agreed to, but did not put into effect, an 8-cent per hour wage increase for the employees. Petitioner's counsel opined that the pendency of this proceeding before the Board "would have no effect whatsoever upon the rights of the employees" to collect the reported wage increase. Petitioner's counsel stated the belief that the wage increase was "a legal obligation enforceable in Court either by the employees individually or with the assistance of their collective bargaining agent, whomever it may be ..." and that the choice of a new bargaining representative "in the forthcoming election will have no effect whatsoever either one way or the other on the legal rights of the employees to collect and receive their agreed upon increase." At the bottom of the letter was this message from the Petitioner, "NO ONE-Not even Jason or Krivoff 4 can take this raise away from you." The bulletin which the Employer posted on October 28, 1957, was a letter the Employer had received from its counsel and was identified as the "answer" to the letter written by Petitioner's counsel. The Employer's letter stated in substance that about June 28, 1957, the Employer had executed a collective-bargaining contract with the Intervenor which, among other things, provided for an 8-cent per hour wage increase for employees and was to have been effective the following payday. The letter noted that the Employer received notice of the filing of the petition in this proceeding before the wage increase was to be paid for the first time. The letter stated that the Em- 8 Amended by the Regional Director on February 3, 1958. 6 Employer officials. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's counsel had previously advised the Employer not to pay the wage increase because the Board might consider such action an unfair labor practice and that the Employer was not going to pay the higher wage until after the election. Employer's counsel expressed the opinion that the contract executed with the Intervenor in June 1957 was legal but was suspended pending the election. His interpre- tation of the law was that if the Intervenor won the election, the June 1957 agreement would "immediately come into effect" and the Employer would have to pay its employees the wage increase granted in the agreement "back to the date of June 28, 1957." In his opinion, the contract would not be enforceable by the employees if neither participating union won the election. If the Petitioner won the elec- tion, the contract would "be null and void" and the Employer would "negotiate a new contract" with the Petitioner. Employer's counsel concluded with the opinion that "under no circumstances" could the employees sue to put the wage increase into effect and that the only party which could sue the Employer for the higher wages was the Intervenor-if it won the election. The disputed Employer bulletin was designed as an answer to the 'Petitioner's earlier letter which made a campaign issue of the wage increase negotiated in the suspended contract of June 1957. In such circumstances we agree with the Regional Director that the contents of the Employer's bulletin reflected the legal opinion of its counsel with respect to the wage increase and answered the legal opinion of the Petitioner's counsel. As an expression of the Employer's legal position, the validity of which we do not pass upon, the bulletin was privileged under Section 8 (c) of the Act.' Contrary to the Peti- tioner, the bulletin did not contain a promise of benefit to the em- ployees if they selected the Intervenor nor did it threaten reprisal if they chose the Petitioner. Accordingly, we find that the bulletin did not interfere with the employees' free choice in the election and does not warrant setting it aside. Objections (2), (3), (4), and (5) and supplemental objections (1) and (2) are based on the Petitioner's allegations that: various officials of the Employer told employees they would not receive the 8-cent per hour wage increase the Employer had agreed to pay them if they selected the Petitioner in the election; a supervisor informed em- ployees that if they selected the Petitioner in the election the plant would close down; the Employer permitted free plant access to solici- tors for the Intervenor during the week preceding the election but did not grant the Petitioner's representatives equal privileges; all the plant supervisors were told at a meeting held the Saturday before the election that commencing the following Monday "they were to 5 Esquire, Inc . ( Coronet Instructional Films Division), 107 NLRB 1238; La Pointe Machine Tool Company, 113 NLRB 171. DARTMOUTH FINISHING CORPORATION 265 conduct an agressive campaign in behalf of" the Intervenor, and the supervisors thereafter carried out those instructions; and one super- visor was "particularly aggressive in the use of threats and intimida- tion in his activity in behalf of" the Intervenor. The Regional Director's investigation failed to reveal any probative evidence to support these allegations, and he found that they had no merit. In its exceptions the Petitioner asserts that the allegations were not substantiated by the employees because they have been "intim- idated and terrified" by the Employer and the Intervenor. The Peti- tioner claims that the allegations would be established if the Board holds a hearing in this proceeding. The Petitioner, as the party filing objections, was obligated to furnish the Regional Director with evi- dence in support of its objections.' Its failure to submit such evidence in the Regional Director's investigation because of asserted fear of retaliation against employees did not lessen the Petitioner's obliga- tion.7 As the Petitioner has failed to submit evidence to support these various exceptions, we find they do not raise material or substantial issues pertaining to the election, and they are overruled. In objection (6) the Petitioner asserts that during the week before the election, the Intervenor's representatives offered to employees "thought to be favorably inclined to the Petitioner" jobs as Intervenor stewards with compensation of $10 per month. The Petitioner argues that these offets were specifically intended to influence the employees' votes in the election. The Regional Director found that the Intervenor pays all its stew- ards $10 a month. After the election the Intervenor appointed one additional steward in the Employer's finishing department. There is no evidence that the Intervenor appointed more than one steward or that the one appointed was offered financial consideration to vote for the Intervenor. We find, as did the Regional Director, that there is no merit in this objection. Objection (7) is based on the claim that the Intervenor distributed a leaflet containing two alleged factual misrepresentations and that the election should therefore be set aside. One asserted misrepresen- tation was the Intervenor's statement that officials of the Petitioner had agreed with Normandy Print 6 to change job classifications to com- bine the work of those classifications with other jobs "whereby employ- ees with 7 to 10 years' seniority were forced to be laid off and Junior employees with 3 months' service were given these combined jobs." The other Intervenor statement was that a Petitioner business agent "was given FREE SPACE at the Normandy Print to go into the manufacture of Laundry Bags." 6 N. B. Liebman i Company, Inc., 112 NLRB 88, 90. 7 Helen H. Droetze, et al., d/b/a Hincher Manufacturing Company, 106 NLRB 1814, 1816. 8 Another employer whose employees the Petitioner apparently represented. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Intervenor did circulate a leaflet containing the two alleged misrepresentations. However, even assuming that the two items were misrepresentations, they were not deliberate misstatements of material facts within the Intervenor's special knowledge which the employees could not properly evaluate. Accordingly, the Intervenor's circula- tion of the leaflet has not been shown to exceed the standards of legiti- mate campaign propaganda so as to impair the employees' free choice in the election.' As we have overruled the objections to the election and as the tally of ballots shows that the Intervenor received a majority of the valid ballots cast, we shall certify the Intervenor as the collective-bargain- ing representative of the employees in the appropriate unit. [The Board certified Local Union No. 59, Chauffeurs, Warehouse- men and Helpers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective- bargaining representative of the employees of the Employer in the appropriate unit.] 6 C. H Wheeler Manufacturing Company, 118 NLRB 698. California Vegetables Concentrates, Inc. and Packing House Employees and Warehousemen 1 Local Union No. 698, I. B. T. C. W. & H. A., Petitioner. Case No. 20-RC-3418. March 31, 1958 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 M. C. Dempster, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain 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. 1 The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi- cate of affiliation revoked by convention action, the identification of this Union is hereby amended. 120 NLRB No. 40.