Tri-Ex Tower Corp.

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-Ex Tower Corporation and Shopmen's Local Union No 624 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Petitioner. Case 20-RC-12777 June 10, 1976 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 3, 1975, the Regional Director for Region 20 issued a Supplemental Decision and Di- rection of Second Election in the above-entitled pro- ceeding in which she sustained Petitioner's objections to conduct affecting the results of the election, and directed that a second election be conducted 1 There- after, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's Supplemental Decision on the grounds, inter alga, that she departed from officially reported Board precedent By telegraphic order dated September 29, 1975, the National Labor Relations Board granted the request for review and stayed the second election pending decision on review Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the entire record 2 in this case with respect to the issue under review and makes the following findings Petitioner's objections concern a letter mailed by the Employer and received by the employees on the evening before the election concerning a strike which had occurred at another plant in the area The letter states in part We conducted our own investigation of Local 624 and found the following information which we pass onto [sic] you 1 In August of 1973 Local 624 engaged in a disastrous strike against PDM, in Fresno, which lasted for two months During this time, all of the employees of PDM were out of work and could not cross the picket line with- 1 The tally of ballots for the election showed that, of approximately 12 eligible voters, 12 cast valid ballots of which 5 were for and 7 against the Petitioner 2 Employers suggestion of oral argument is hereby denied out being subjected to heavy fines BY THEIR UNION After all their hours of picketing, harsh and bitter feelings, no pay checks, no employment insurance , and no doubt, heat prostration and fatigue, the employees re- turned to the job with EXACTLY THE SAME CONTRACT AS THE COMPANY OFFERED PRIOR TO THE STRIKE Also, the company because of loss of orders during the strike, was forced to reduce its work force and has never reached the same level again This is what the union did for the employees of PDM111 The Regional Director found the letter conveyed the false impression to employees that the Petitioner had led employees of PDM out on a long strike dur- ing which no gains were made, when, in fact, the final contract offered by PDM and accepted by Lo- cal 624 was different from the contract offered prior to the strikes She concluded the misrepresentation was substantial and made at a time when the Peti- tioner was prevented from making an effective reply Contrary to the Regional Director, we find that the Employer's letter does not contain a substantial mis- representation warranting setting aside the election While it may not have been technically accurate to say the final contract was "exactly the same as the contract offered prior to the strike," in our opinion the changes contained in the final contract were mi- nor in nature, according the employees only minimal increases in their fringe benefit package 4 In these circumstances, we do not view the Employer's char- acterization of the final contract as a substantial de- parture from the truth' The Petitioner's objections are therefore overruled 6 Accordingly, as the objections have been overruled and the tally of ballots shows that a majority of the 3 PDM and Local 624 agreed to the following three changes in the final contract (1) to increase the employees life insurance benefits from $4 000 to $5,000 at no cost to the employees, (2) to include a dues-checkoff provi- sion in the contract and (3) to replace the existing medical insurance cover- age under which employees could not receive reimbursement for medical expenses until they had met a $100-deductible fee, with a plan prepaid by the Employer under which the employees were required to pay only a mini- mal fee each time they sought medical attention at a participating clinic 4 The Employer contends the changes in health benefits actually amount- ed to a reduction in cost to PDM of 7 cents per hour per employee, while the changes in the employees' life insurance benefits cost only an additional 4 cents per hour per employee We also note that PDM and Local 624 agreed to revert back to the old contracts health plan after a 3-month period 5 Modine Manufacturing Co, 203 NLRB 527 (1973) 6 Member Penello agrees that the alleged misrepresentation does not war rant setting the election aside, but does so for the reasons as set forth in his dissenting opinions in Medical Ancillary Services, Inc 212 NLRB 582 (1974) and Ereno Lewis 217 NLRB 239 (1975) Chairman Murphy agrees with the conclusion that the election should not be set aside inasmuch as she would reach the same result under any view of the applicability or validity of Modine Manufacturing Co supra and Holly wood Ceramics Company Inc, 140 NLRB 220 (1962) 224 NLRB No 122 TRI-EX TOWER CORP 681 valid votes have not been cast in favor of the Peti- tioner, we shall certify the results of the election CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for the Shopman's Local Union No 624 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Sec- tion 9(a) of the National Labor Relations Act, as amended MEMBER FANNING, dissenting I cannot agree with my colleagues to deny these employees a second election as directed by the Re- gional Director To be told in bold type included in a letter received election eve that this Union-at a plant about 50 miles away-received EXACTLY THE SAME CONTRACT AS THE COMPANY OFFERED PRIOR TO THE STRIKE, when in fact there were two improvements in the poststrike contract in addition to a dues-checkoff provision, which to some employees would be a de- sirable convenience, is in my view a substantial mis- representation which the Union had no opportunity to rebut The majority opinion assesses the materiality of the misrepresentation by how little the contract cost the Employer I would not The added cost of $1,000 more in life insurance benefits is set off against the apparent reduced cost of a medical expense reim- bursement provision that avoids a $100-deductible requirement, and the checkoff provision is ignored Our Act is a public interest statute Surely bargain- ing benefits are to be measured by employee impact and employer effort and concern in negotiating them, not by the comparatively low cost in cents per employee hour By no stretch of the imagination was the contract "exactly the same" after the 6-week strike These were significant improvements received at the other plant and these employees should not have gone to vote under the erroneous impression that the strike effort produced no benefits to offset the hardships so graphically depicted in the Employer's last-minute missive In my view the laboratory conditions the Board requires for its elections were here violated