The Cleveland Trencher Co.

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which I find will effectuate the purposes of the Act. Because the circumstances of this case do not warrant a broad order and because I believe that the decision of the Supreme Court in Communication Workers of America, AFL-CIO, et al. v. N.L.R.B. (Ohio Consolidated Tele. Co.), 362 U.S. 479 16 restrains the Board from the use of such orders except under the most extraordinary conditions, my recommenda- tion is confined to picketing in violation of Section 8(b) (7) (C) against the employer herein and does not include "any other employer." Since there is no evidence that the picketing by Respondent had for its purpose the forcing or requiring of the em- ployees of Blinne to accept or select the Respondent as their collective-bargaining agent picketing for such purpose is not restrained. (The stipulated facts establish that all of the employees of Blinne at the picketed premises had selected Respondent as their bargaining representative so such picketing would have been aimless.) Upon the basis of the foregoing findings and conclusions and upon the entire record herein, I make the following: CONCLUSIONS OF LAW 1. Charles A. Blinne, d/b/a C. A. Blinne Construction Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Blinne from February 8 until and including March 11, 1960, with an object of forcing and requiring Blinne to recognize and bargain collectively with Respondent, nothwithstanding Respondent was not then certified as the representative of Blinne's employees, without a petition being filed under Section 9(c) of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 19 The Sixth Court of Appeals had already stricken the words "in any other manner" from the Board's order so the Board's powers presumably are now recognized to have appropriate limitations. The Cleveland Trencher Company and District 54-Interna- tional Association of Machinists, AFL-CIO, Petitioner. Cases Nos. 8-RC-3979 and 8-RM-253. February 20, 1961 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on September 1, 1960, under the direction and supervision of the Regional Director for the Eighth Region, among the employees in the agreed unit. Upon the conclu- sion of the balloting the parties were furnished with a tally of ballots which showed that, of approximately 108 eligible voters, 103 cast valid ballots, of which 53 were for, and 50 were against, the Petitioner. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. After an investigation, the Regional Director issued his report on objections, in which he recommended that the objections be overruled and the results certified. The Employer filed timely exceptions to the Regional Director's report. 130 NLRB No. 59. THE CLEVELAND TRENCHER COMPANY 601 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. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Euclid, Ohio, plant, including inspectors, dispatchers, and shipping, receiving, and stores department employees, but excluding all office clerical employees, experimental department employees, professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the Employer's objections, the Re- gional Director's report, and the Employer's exceptions thereto, and, upon the entire record in this case, makes the following findings : The objections allege that the Petitioner on the evening before the election distributed a leaflet to the employees in which it made ma- terial and deliberate misstatements of fact as to the benefits it had obtained for the employees of four other employers in the area : Barth Corporation, Precision Die Casting Company, Efficient Tool and Die Company, and Accurate Die Casting Company, herein re- ferred to as Barth, Precision, Efficient, and Accurate, respectively. The Regional Director found that the leaflet contained a number of inaccuracies and misrepresentations, some of which were brought to the employees' attention in a letter circulated by the Employer on the next morning. He concluded that those misrepresentations which were not brought to the employees' attention in the Employer's letter of rebuttal were not of sufficient gravity to warrant setting the election aside, because they involved few of the approximately 38 representa- tions made and they related to fringe items, i.e., automatic increases to equalize pay within classifications, cost-of-living increases, and sick and accident benefits. The Employer excepted to the Regional Director's conclusion on the grounds that : (1) the misstatements in question were material misrep- resentations, (2) they had an impact on the election results, (3) they were matters peculiarly within the Petitioner's knowledge, and (4) they were made so close to the election that they could not be ade- quately rebutted or neutralized. We find merit in the exceptions. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The misstatements in question are as follows : (1) The Petitioner's leaflet stated : At "Precision" not only do [employees] have all the [previously enumerated benefits obtained at Barth] but "also a cost-of-living clause was incorporated into the contract together with an auto- matic increase in wages of 15¢-100-100 for a three (3) year contract which has provided an additional 8¢ per hour wage increase for every employee." The 8-cent figure in the above paragraph was admittedly in error. The Employer contended that it led employees to believe that an 8-cent cost-of-living increase was obtained. The Petitioner maintained that it was a typographical error and that it should have read 40 cents, which would indicate a 5-cent cost-of-living increase. The Regional Director found that the cost-of-living increase was actually 5 cents. The contract provided for an increase of 1 cent for every 0.5 advance in the cost-of-living index. The Regional Director did not credit the Petitioner's explanation of the 8-cent figure, but concluded that in context it was so ambiguous as not to be misleading. Contrary to the Regional Director, we believe that a reasonable construction of the statement is that an additional 8 cents was obtained as a cost-of-living increase. Moreover, the leaflet implies that all the employees at Precision received the aforementioned automatic increase. However, the con- tract at Precision indicates that only labor grades 1 through 5 had the stated increases, while labor grades 6 through 10 had 6 cents, 7 cents, and 8 cents. Although the Regional Director found that the Peti- tioner represented only the first 5 labor grades, and that another labor organization represented the other 5 grades, the contract on its face shows the Petitioner to be the representative of employees in all 10 grades. (2) One of the 16 listed benefits claimed to have been obtained for employees at Barth was "Increased sick and accident insurance from $45 per week to $55 per week up to 26 weeks." This same benefit was claimed to have been obtained for the employees at Precision. How- ever, at Precision these benefits amounted to only $33 per week for only 20 weeks. Contrary to the Regional Director we believe that this was a material misrepresentation. (3) The Petitioner further claimed in its leaflet : At Efficient as at Accurate, it obtained "a built-in automatic wage increase every four months to bring up the wages of the lower-paid employees to the plant average for the occupation. The contract at Efficient provides that employees paid below their job rate schedule will receive automatic increases of 5 cents per hour THE CLEVELAND TRENCHER COMPANY 603 every 4 months until they reach the established rate for their classi- fication, and not the average rate as stated. The established rates as set forth in the contract are considerably lower than the average rates. At Accurate an addendum to the original contract provided that employees in four classifications in the toolroom would receive auto- matic 5-cent per hour increases every 6 months until they reached the bottom of the merit range for their classifications. It is thus seen that the Petitioner's claims were partially false. Although the Petitioner stated in its leaflet that the claims of bene- fits obtained could be proved by inspection of the signed contracts, if anyone was interested, this does not in our opinion remove the state- ments made from the special knowledge of the Petitioner in view of the late hour of the distribution of the leaflets. As a general rule, absent coercion or fraud, the Board will not undertake to police or censor election propaganda. However, where a party deliberately makes material misrepresentations of fact in circumstances in which employees are unable to evaluate the asser- tions for truth or falsity, the Board has held that the legitimate bounds of campaign propaganda have been exceeded and has set aside the election.' In the instant case, the Petitioner misrepresented some of the benefits it had obtained in contracts for employees of four other companies in the area. These misrepresentations involved eco- nomic benefits of a fringe nature, which like basic wage rates, are matters of vital concern to employees voting in the election. The Petitioner distributed the leaflet containing these misstatements on the evening before the election. Although the Employer pointed out some of the inaccuracies in these claims in the letter which it distributed the next morning, it did not learn the facts concerning the misrepresentations specified above until after the election and could not do so without ready access to the written contracts between the Petitioner and the other companies. In these circumstances, as the Petitioner was in an authoritative position to know the true facts and the employees were unable to evaluate the misrepresentations made herein, we conclude that the Petitioner interfered with the employees' free choice. Accordingly, we shall set the election aside and direct that a new one be held. [The Board set aside the election held on September 1, 1960, among the employees of The Cleveland Trencher Company in the unit here- tofore found appropriate.] [Text of Direction of Second Election omitted from publication.] MEMBERS JENKINS and FANNING took no part in the consideration of the above Decision, Order, and Direction of Second Election. I The Calidyne Co., 117 NLRB 1026; and Kawneer Company, 119 NLRB 1460.