Steel Equipment Co.

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be adduced so long after the disputed work had been completed.2 Ac- cordingly, we shall vacate the Determination of Dispute, dismiss the complaint based thereon, and quash the notice of hearing. [The Board vacated and set aside the Decision and Determination of Dispute, dismissed the complaint, and quashed the notice of hearing.] 2 See Panama City Building and Construction Trades Council, AFL-CIO (Marvin Ray and Albert Ray, partners, d/b/a Ray Fabricating and Manufacturing Company), 136 NLRB 1002. Steel Equipment Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Petitioner. Case No. 8-RC-4422. Feb- ruary 7, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on October 11, 1961, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that, of approximately 62 eligible voters, 61 cast valid ballots, of which 34 were against, and 27 for, the Petitioner. The Petitioner filed timely objections to conduct affecting the results and conduct of the election. After investigation, the Regional Director, on November 24, 1961, issued and served upon the parties his report on objections in which he recommended that objection No. 1(d) be sustained and that all other objections be overruled. Thereafter, the Petitioner and the Em- ployer 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 [Members Rodgers, Fanning, and Brown]. 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 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 Sections 9 (c) (1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that all production and main- tenance employees, including group leaders and shipping and receiv- ing clerks, but excluding all office clerical employees, guards, profes- 140 NLRB No 122. STEEL EQUIPMENT COMPANY 1159 sional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. In its objection No. 1(d) the Petitioner contended that certain representations made by the Employer concerning wage rates as- sertedly negotiated by a union at the Lewis Welding Company, were false in that the rates had not been arrived at through collective bar- gaining. The Regional Director, noting that the Employer subcon- tracted a substantial amount of work to the company in question, found that Lewis had two plants, one at Euclid, Ohio, where the employees were unrepresented, and one at Bedford, Ohio, where there was a union with a collective-bargaining agreement. He also found that the rates quoted by the Employer were in fact those rates in effect at the Euclid plant, and that the wage rates quoted were in two specific instances in- correct. Relying on the Employer's relationship with Lewis Weld- ing, and its obvious effort in a leaflet to stress to the employees that it had authoritative knowledge regarding the jobs and wage rates at Lewis, the Regional Director found that the statements were material misrepresentations constituting grounds for setting aside the election. The Employer, in excepting to this finding, points out that the Euclid plant was in fact organized and that Shopmen's Iron Workers Local No. 468, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, had been recognized by Lewis as the bargaining representative of the employees at the Euclid plant approximately 1 month prior to the circulation of the disputed wage rates and job classifications. The Employer also notes that the wage rates cited by it were in fact incorporated into the agreement entered into between the Iron Workers and Lewis approximately 1 month after the Employer's circulation of the disputed figures. The Employer further contends that the Regional Director erred in not finding at least five of the seven classifications were in existence at the Bedford shop. We find, in agreement with the Regional Director, that the Em- ployer's statements in a leaflet, received by the employees 1 or 2 days before the election, contained a substantial departure from the truth in indicating that the quoted wage rates for Lewis Welding were the product of a collective-bargaining agreement. We reach this conclu- sion even assuming the correctness of the Employer's statement regard- ing the disputed rates and job classifications. The Employer's message in the leaflet declared that Lewis Weld- ing's plant "is unionized" and invited each employee to check with the Company's own vice president if he had any question concerning the "union rates" at Lewis Welding. Thus by failing to identify which plant it was referring to and by its statements in the leaflet, the Em- ployer conveyed the impression that the rates set forth, which were dif- 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferent from those at the Bedford plant, and lower than its own, were, the result of a bargaining contract, when in fact there was no agree- ment on wages until a later time. In Hollywood Ceramics Company, Inc.,' we set aside an election where a union made a similar misrepresentation. The rule of that case is equally applicable here. Accordingly, this conduct of the Em- ployer is sufficient ground for setting aside the election. The Regional Director further found that other statements of the Employer were typical campaign propaganda which the employees were capable of evaluating. We do not agree. A careful review of these assertions shows that they were designed to implant in the minds, of the employees a fear of economic and physical suffering, the prob- ability of a loss of benefits, and the hazards of collective bargaining.. Specifically, the Employer indicated that the employees could expect a strike if the Union won the election. To show its economic power- in this situation the Employer implied that when this occurred, it would subcontract all its production work, thus threatening the em- ployees with loss of employment. This statement constitutes a sep- arate, additional ground for setting aside the election 2 In view of the foregoing, we conclude that the Employer's conduct interfered with the employees' freedom of choice and warrants setting aside the election. Accordingly, we shall set the election aside and, order a second one.' [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] MEMBER RoDGERS, concurring : I concur in setting aside the election herein, but only for the reason set forth by the Regional Director. 1140 NLRB 221. 2 Somismo, Inc., 133 NLRB 1310. In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendations that objections Nos. 1 ( a) and ( c), 2(a), (b), ( c), (e), and (f), 3(a) and (b ), and 4 be overruled . In view of our decision herein, we find it unnecessary to rule on the issues raised by Petitioner in its exceptions to the Regional Director's recom- mendations as to objections Nos. 1 (e) and 2(d). West Virginia Pulp and Paper Company (Hinde & Dauch Divi- sion, Detroit Plant) and United Papermakers and Paper- workers, AFL-CIO, and its Local No. 998. Case No. 7-R-2254. February 7, 1963 DECISION AND ORDER CLARIFYING CERTIFICATION On April 29, 1946, the Regional Director for the Seventh Region issued a consent determination of representatives determining that the 140 NLRB No. 110,