R.L. Polk & Co.

R. L. POLE & COMPANY 181 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Sierra Furniture Company is engaged in commerce within the meaning of the Act Local 208 and Local 123 are, each of them, labor organizations within the meaning of Section 2(5) of the Act 3 By picketing the premises of Sierra with an object of obtaining recognition and a contract as the bargaining representative of Sierra employees when they did not represent a majority of the said employees, Respondents restrained and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, theieby violating Section 8 (b)(1) (A) of the Act 4 By appeals to customers and potential customers of Sierra not to do business with the latter while the strike against Sierra was in progress, with an objective of requiring Sierra to recognize Respondents as exclusive representative of Sierra employees and to make a contract with Respondents when they did not represent a majority of the said employees, Respondents restrained and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b)(1)(A) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act 6 Respondents did not cause or attempt to cause Sierra to discriminate against its employees in violation of Section 8(a) (3) of the Act, and therefore did not engage in conduct violative of Section 8(b)(2) of the Act [Recommendations omitted from publication I R. L. Polk & Company and Office Employees International Union, AFL-CIO, Petitioner. Case No 9-RC-3561 Novem- ber 17, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board on May 14, 1959,1 an election by secret ballot was conducted on June 12, 1959, under the direction and supervision of the Regional Director for the Ninth Region, among the employees in the unit here- tofore found appropriate Following the election, the parties were furnished a tally of ballots which showed that of approximately 800 eligible voters, 639 voted, of which 333 valid ballots were cast for, and 9,97 were cast against, the Petitioner, 5 ballots were void, and 9 ballots were challenged Thereafter, the Employer filed timely objections to conduct affecting the results of the election In accordance with the Board's Rules and Regulations the Regional Director conducted an investigation and on September 10, 1959, issued and served upon the parties his report on objections in which he recom- mended that one objection be sustained, that the election be set aside, i 123 NLRB 1171 125 NLRB No 21 535828-60-vol 125-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that a new election be ordered. The Petitioner filed exceptions to the Regional Director's report together with a supporting brief, and the Employer filed a reply brief. 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 Rodgers and Jenkins]. In objection No. 1, the Employer alleged that immediately before the election the Petitioner distributed a circular to eligibles which contained material misrepresentations as to wage and fringe benefits received by employees in another plant of the Employer in which the Petitioner had a collective-bargaining contract, resulting in con- fusion which precluded a free choice by the employees in the elec- tion.2 The Employer further alleged that because of its timing an adequate reply was not possible. The investigation revealed the fol- lowing facts : The circular in question was one of a series of preelec- tion documents distributed by the parties in which various contentions were made as to the benefits received by the Employer's nonunion Cincinnati plant involved herein and its unionized plants, including its Trenton, New Jersey, plant represented by Local 32 of the Peti- tioner. In a letter distributed to all its employees on June 5, 1959, the Employer stated its preference for no union and presented a detailed statistical summary comparing wage increases and fringe benefits received by its unionized plants as compared with its non- union Cincinnati plant. The letter noted inter alia that seven paid holidays were granted at all its plants and that no general wage in- crease had been put into effect during 1958 at its Trenton, New Jersey, plant. The letter concluded : "When we look at the record, it is quite clear we have a good thing here in Cincinnati. We do not know what the future will bring, but when the past shows what has been accom- plished without a Union, we can ask : What could a Union have done to improve the record? ...." On June 10 and 11, 1959, the Petitioner answered the Employer's letter in a printed bulletin distributed to employees which stated inter alia, "In the Polk Company at TRENTON, N.J. where the Employees have their OEIU UNION for MANY YEARS with PLEASANT RELATIONS . . . THEY DID get a RAISE in 1958... as they DID in PREVIOUS YEARS. . The CONTRACT RECORD PROVES it. When Mr. Wollenzin stated they DID NOT get a WAGE INCREASE in 1958 ... he either DELIBERATELY 2 As no exceptions were made as to the Regional Director 's overruling the Employer's objections Nos. 2, 3 , 4, and 5, we shall adopt his recommendations pro forma. R. L. POLK & COMPANY 183 LIED ... or he is in COMPLETE IGNORANCE as to what is GOING ON in the Polk Empire." Below this, there was a heading entitled "RECEIVED ADDITIONAL BENEFITS TOO," which listed various other alleged benefits received under the 1958 Trenton contract including "8 PAID HOLIDAYS." In an office memorandum distributed to employees on June 11, 1959, the Employer denied the accuracy of the Petitioner's above- mentioned statement stating that the contract shows that at its Tren- ton, New Jersey, plant, there was no general wage increase in 1958 and that there were seven not eight paid holidays. Attached to the memo- randum was a document entitled "HERE IS THE TRUTH," which contained a facsimile of portions of the 1957 and 1958 contracts for the Trenton plant, showing as signatories thereto C. A. Wollenzin, Jr., the Employer's industrial relations director, and the officials of Local 32 of the Petitioner. The wage rates of several selected job classifications were listed for both years and showed no change. There were also listed for both years six paid holidays. At the conclusion of the attached facsimile was a statement sworn to before a notary public by its general manager that the portions of the contract reproduced were true and exact copies, and the record establishes such to be the fact. On June 12, 1959, the day of the election, the Petitioner distributed a mimeographed handbill entitled, "Has Perjury Been Committed? OEIU to Investigate" and which then went on to state, "Now doesn't COMMON SENSE tell you that, if the SUPPOSEDLY reproduced TRENTON CONTRACT WERE TRUE, the GREEDY MONEY HUNGRY Polk Company would JUMP at the OPPORTUNITY to Give it to you CINCINNATI POLK EMPLOYEES? .... In- stead, they are trying desperately to DENY you the SUPPOSEDLY TERRIBLY BAD CONTRACT. Yes, in one voice they say ... don't VOTE for the OEIU ... their CONTRACT will put us out of Business ... We ask you : Did you ever hear such DOUBLE TALK . . . such LIES?" The main part of the handbill was de- voted to a cartoon in which C. A. Wollenzin is depicted as telling the Employer's lawyer to make up "the BIG LIE about the Trenton CON- TRACT." and the Attorney agreeing to make up the "FALSE CON- TRACT STATEMENT." The handbill contained no facts or figures about wage rates or paid holidays. The Regional Director, relying on the doctrine enunciated in the Gummed Products Company case,' found that the Petitioner's hand- 8112 NLRB 1092. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bill of June 12 was, in effect, a reiteration of material misrepresenta- tions of facts peculiarly within the knowledge of the Petitioner and under such circumstances as to confuse employees who did not have sufficient knowledge of the true facts which would have enabled them to properly evaluate the misstatements. He therefore concluded that the Employer's objection No. 1 raised a substantial and material issue with respect to the conduct of the election and recommended that the objection be sustained and the election be set aside. We do not agree. In our opinion the Gummed Products case is not here controlling. In that case upon the eve of the election there was reiteration of false statements by the union involved, in the face of direct con- tradiction by the employer, with respect to wages contained in an alleged contract entered into between such union and another em- ployer. In condemning such conduct, the Board recognized that un- like the employer, the union which was a party to the alleged contract was in an "authoritative" position to know its exact terms and that therefore, the employees would give greater than ordinary weight to its statements. In the instant case, however, there is no basis for con- cluding that the naked misleading assertions of the Petitioner would be given more weight by the employees than the contrary statements and documentary proof submitted by the Employer with respect to the terms of its own contract for the Trenton plant. While we do not condone the Petitioner's campaigning tactics we are satisfied that the Employer's letters and authenticated documentary evidence ade- quately presented its side of the facts and that the employees them- selves were able to appraise the misrepresentations in the union's handbill of June 12 as propaganda' The fact that the Employer's statements preceded the Petitioner's handbill is immaterial, since the Employer was not entitled to the last word as a matter of right." We therefore overrule the Employer's objection. As we have overruled the objection 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 Office Employees International Union, AFL-CIO, as the designated collective-bargaining representative of the employees in the unit heretofore found appropriate.] * See Herder's, Incorporated, 114 NLRB 751, 753; Hennametal, Inc., 119 NLRB 1236, 1238-1239; ef. Bata Shoe Company, Inc., 116 NLRB 1239, 1242-1243. 5 Celanese Corporation of America, 121 NLRB 303.