Ore-Ida Foods, Inc.

1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included. In reading the language of the stipulation, we find that it was the clear intent ion of the parties to include only those eiuployees specifically designated therein, and to exclude all others. The unit -established by the parties does not violate any clearly established Board policy and where there are no such competing interests the primary question is what, the parties intended. Therefore, we reject the Regional Director's recommendation and sustain the challenges to the nine ballots here in issue. Accordingly, as the tally of ballots shows that the participating labor organizations have not obtained a majority of the valid votes cast, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for the participating labor organizations, Local Lodge No. 1712, International Association of Machinists and Aerospace Workers, AFL-CIO, and Local Union No. 449, International Brotherhood of Electrical Workers, AFL-CIO, and that neither of said labor organi- zations is the exclusive representative of the employees in the unit found appropriate.] Ore-Ida Foods, Inc. and Joint Council of Teamsters No. 37, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent, Petitioner i and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner.2 Cases 36-RC-2090 and 2092. September 27, 1966 DECISION ON REVIEW, ORDER, AND DIP, ECTION OF SECOND ELECTIONS Pursuant to a Decision and Direction of Elections issued by the Regional Director for Region 19 on December 16, 1965, elections by secret ballot were conducted on February 2, 1966, under his direction and supervision, in voting groups (1) and (2), compromising, respec- tively, maintenance employees and production employees at the Employer's Ontario, Oregon, food processing operations. Upon the conclusion of the balloting, the parties were furnished with tallies of ballots which showed that, in voting group (1), of approximately 78 eligible voters, 75 cast ballots, of which 42 were for the Teamsters, 6 were for the Meat Cutters, 26 were against the participating labor i Referred to herein as the Teamsters 2 Referred to herein as the Meat Cutters. 160 NLRB No. 102. ORE-IDA FOODS, INC. 1397 organizations, and 1 was challenged; and that, in voting group (2), of approximately 963 eligible voters, 916 cast ballots, of which 447 were for, and 462 against, the Meat Cutters, 3 were challenged, and 4 were void. The challenged ballots were insufficient in number to affect the results in either election. Thereafter, timely objections to conduct affecting the results of the elections were filed by the Employer with respect to voting group (1) and by the Meat Cutters with respect to voting group (2). In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on March 9, 1966, issued his Supplemental Deci- sion, Certification of Representative, and Certification of Results in which he overruled all the objections. Thereafter, pursuant to Section 102.67 of the Rules and Regulations, the Employer 3 and the Meat Cutters filed timely requests for review. On April 18, 1966, the National Labor Relations Board, by tele- graphic order, granted the requests for review. Thereafter, each of the parties filed a brief on review. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has considered the entire record in this case, with respect to the issues under review, including the positions of the par- ties, and makes the following findings : The Employer's objection 1 relates to alleged misrepresentations and misleading statements contained in a letter distributed by the Teamsters to employees in both voting groups. The letter was deliv- ered by mail to the homes of employees on January 31, 1966, and the Employer asserts that the letter first came to its attention at 9 a.m. on February 1, when an employee brought the copy he had received to the plant and gave it to the industrial relations director. The election was scheduled to commence at 5 a.m. the following day. The letter stated, inter alia, that : If the majority of the Maintenance group vote for the Team- sters, we will be following the program you and the Production Group and the Drivers agreed on some time before the (Meat Cut- ters) interferred [sic]. At that time, if you remember, we agreed to go at this a Unit at a time-first the Drivers, which we won, and at present are very close to a contract which can be very 8 The Employer requested review solely with respect to the Regional Director' s disposi- tion of its objection 1. 1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD helpful to you as well as the Drivers. The Company has offered us 470 per hour increase in wages and benefits over the next three years for the Drivers. We want more, but certainly this is a great gain and we can do as much or more for you if we win your Group. The next step in our original program is your election. If you win this and the (Meat Cutters) lose the Production election, the next step we will take is for the Production people as we agreed last summer. [Emphasis supplied.] The Teamsters was certified in October 1965 as bargaining repre- sentative of a unit of the Employer's "over-the-road" truckdrivers. Subsequently, the Teamsters and the Employer met, and exchanged and discussed contract terms. In early January 1966, the Employer submitted to the Teamsters a proposal for a 3-year agreement which included, inter alia, offers of an increase in mileage rates for drivers of 1 mill per mile each year, an hourly increase for downtime, and a pay- ment for a pension program. This proposal formed the basis for the Teamsters' assertion that the Employer had offered the truckdrivers a "47 cents per hour increase in wages and benefits over the next three years." According to the Teamsters and the Regional Director, 30 cents of the alleged 47-cent hourly increase for truckdrivers was attributable to the proposed increase of 1 mill per mile each year and 17 cents was attributable to the increases for downtime and pension program. As truckdrivers were paid on a mileage basis, rather than on an hourly rate, the Teamsters projected the mileage increase into an hourly in- crease by the following computation : On the basis of the Teamsters' belief that each of the drivers had been paid for about 17,000 miles per month, a 1-mill increase per mile would produce a $17 monthly increase for each of 3 years, totaling $51 per month dur- ing the 3 years of the proposed contract term. This $51 increase was then divided by 173, the average number of hours in a work month, yielding an hourly increase figure of approximately 30 cents. In concluding that there was no substantial misrepresentation by the Teamsters, the Regional Director found that a random survey of 20 percent of the truckdrivers showed that during the last 4 months of 1965 they were paid for an average of 14,894 miles per month, which closely approximates the 17,000 mileage base used by the Teamsters. Although the Employer disputes the respective monthly mileage figures used by both the Teamsters and the Regional Director, it asserts that the principal fallacy in the Teamsters' calculations lies, ORE-IDA FOODS, INC. 1399 not in the estimate of the number of miles for which the drivers are paid each month, but rather in the use of the 173-hour work month as a basis for translating the estimated mileage increase for 1 month into a cents-per-hour Increase. The Employer points out that each of its trucks is manned by two drivers and two drivers are thus required to be on the job to earn the mill-per-mile increase, one actually driv- ing, and one riding along and on duty, for a total of 346 hours per month. From the above-mentioned facts, the Employer, in effect, argues as follows: (1) assuming the correctness of the Regional Director's survey, the drivers were paid for approximately 15,000 miles per month, (2) the mill-per-mile increase, therefore, amounts to $45 over 3 years ; (3) dividing the $45 monthly mileage increase by 346, the approximate number of hours a driver and his partner are on duty each month, yields an hourly increase figure of about 13 cents- less than half the 30 cents per hour included by the Teamsters in the 47 cents figure. We find merit in the Employer's argument. The Teamsters contends that a statement with respect to mileage rates would not have been meaningful to the maintenance and pro- duction workers and that, therefore, it reduced the mileage increase figure to a more readily understandable hourly rate, using as its hourly base the 173 hours per month usually worked by the maintenance and production employees to whom the letter was addressed.' The Teamsters, however, did not indicate this premise in its letter and the employees involved could reasonably have construed it as setting forth additional compensation offered the drivers for each hour they (the drivers) were on duty, whether driving or riding. If the Team- sters had indicated the hourly base it was using or stated the offer in terms of dollars per month, the employees might have had an oppor- tunity for effective evaluation. However, the letter, as written, uncon- ditionally portrayed a straight hourly increase and even employees who were knowledgeable about the hours and working conditions of truckdrivers would not, in the absence of information as to how the hourly figure was derived, have been able to correctly ascertain the extent of the pay increase which the Employer had offered. We find, therefore, that the letter was inaccurate and misleading as to a wage offer the Teamsters had obtained for another bargaining unit at the same plant-a matter of vital concern to the employees and calculated to affect the election results. We also find that although the Teamsters was not on the ballot in voting group (2), covering the production employees, the Teamsters 4 The Teamsters ' brief notes the contention of the request for review that 173 hours should not have been used as the average work month in this context , without addressing itself to the contention that instead of 173, the proper number was 346 inasniucli as the work of two drivers was required to earn the mill-per-mile increase 1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributed the letters to these employees for the avowed purpose of defeating the Meat Cutters so that the Teamsters could subsequently seek to represent them. In our opinion the misrepresentations in the letter affected improperly the results of the elections in both voting groups. Under all the facts and circumstances herein, including the timing of the letter's distribution, the number of employees involved, and the multishift nature of the operation, it is clear that the Employer and the Meat Cutters were precluded from making any effective reply prior to the election. We find, therefore, that the misrepresentations were material and substantial and reasonably tended to interfere with the free choice of the employees in both elections. Accordingly, we shall set aside the elections conducted herein and direct that second elections be conducted. [The Board set aside the elections conducted on February 2, 1966.] [Text of Direction of Second Elections omitted from publication.] 8 We need not, and do not, reach the other issues raised by the requests for review. Finesilver Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Cases 23-CA-2167 and 2244. September 28, 1966 DECISION AND ORDER On June 30, 1966, Trial Examiner David London issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial 160 NLRB No. 111.