Allis-Chalmers Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 28, 1958

120 N.L.R.B. 644 (N.L.R.B. 1958)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations herein contained , Respondents shall restore him to his rightful'
position , less his net earnings during said period . Back pay is to be computed orb
a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. As provided in the Woolworth case, I recommend fur-
ther that Respondent Company make available to the Board, upon request, payroll.
and other records , in order to facilitate the checking of the amount of back pay due.
Upon the basis of the foregoing - findings of. fact, and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. St. Johnsbury Trucking Co., Inc., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Local 478, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, is a labor organization within the meaning.
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment of Herman Ericksen , the Company has engaged,
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By attempting to cause and causing the Company to discriminate against
Herman Erickson , and thus to commit an unfair labor practice within the meaning
of Section 8. (a) (3) of the Act, the Union has engaged in unfair labor practices,
within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed:
in Section 7 of the Act, the Union has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
7. The unfair labor practices herein found are unfair labor practices affecting:
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The collective-bargaining agreement between the Company and the Union
does not give and delegate to the Union final and exclusive control over the
seniority ranking of the Company's employees, or the final and exclusive right to
determine the order of employment of the Company 's employees.
9. The Company has not engaged in. unfair labor practices within the meaning:
of Section 8 (a) (2) of the Act.
[Recommendations omitted from publication.]
Allis=Chalmers Manufacturing Company and International
Union, United Automobile ,. Aircraft and Agricultural Imple-
ment Workers of America , AFL-CIO. Case No. B=CA1I$..
April l'8, 195i$
DECISION AND ORDER
On January 29, 1958, trial Examiner Charles L. Ferguson issued.
his Intermediate Report'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 copy of the.
Intermediate "'Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report with a supporting brief."
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
1 The Respondent 's request for oral argument is hereby denied as, in our opinion; the
record , exceptions, and brief adequately present the issues and positions of the parties.
120 NLRB No. 86.
ALLIS-CHALMERS MANUFACTURING COMPANY 645
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
.at the hearing and finds that no prejudicial error was committed.
'The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
-entire record in this case, and hereby adopts the findings, conclusions,
.and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
.of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Allis-Chalmers Manufac-
turing Company, Pittsburgh, Pennsylvania, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, as the duly certified exclusive bargaining repre-
sentative of its employees in the following appropriate unit :
All designers "A," designers "B," draftsmen "A," draftsmen "B,"
detailers, and tracers presently so classified in the drafting sections
of the product engineering department of the Pittsburgh, Pennsyl-
vania, Works of the Allis-Chalmers Manufacturing Company, ex-
cluding employees of the engineering development section, guards,
professional employees, and supervisors as defined in the National
Labor Relations Act, as amended, and all other employees.
(b) Refusing to furnish the said Union information concerning
the name and classification, seniority dates, and current rate of pay of
each employee in the said bargaining unit, or other data relevant to
negotiation with said Union of wages, hours, or conditions of work
for employees in said unit.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form, join or assist, and bargain collectively through, said
Union, or any other labor organization of their own choosing.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain with the said certified Union as the ex-
clusive representative of the employees in the appropriate unit de-
scribed above with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Furnish the said Union, on request, information concerning
the name and classification, seniority dates, and current rate of pay,
of each employee in said bargaining unit, and such other data as may
be relevant to the negotiation with said Union of wages, hours, or
conditions of work for employees in said unit.
(c) Post at its Pittsburgh, Pennsylvania, Works, copies of the
notice attached to the Intermediate Report marked "Appendix."'
Copies of said notice, to be furnished by the Regional Director for
the Sixth Region, after having been duly signed by an authorized
representative of the Respondent, shall be posted by it immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by other material.
(d) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
7 This notice , however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substi-
tuting in lieu thereof the words "A Decision and Order " In the event that this Order
is enforced by a decree of a United States Court of Appeals, there shall be substituted
for the words "Pursuant to a Decision and Order" the words "Puisuant to a Decree of
the United States Couit of Appeals; Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by International Union, United Automobile , Aircraft and
Agricultural Implement Workers of America, AFL-CIO, herein called the Union,
the General Counsel for the National Labor Relations Boaid, herein referred to
as the Board, by the Regional Director for the Sixth Region ( Pittsburgh , Pennsyl-
vania ) issued a complaint dated July 12 , 1957, against the Respondent herein,
Allis-Chalmers Manufacturing Company, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (5) and ( 1) and Section ( 2) (6) and ( 7) of the National
Labor Relations Act, 61 Stat . 136, herein called the Act . Copies of the charges,
the complaint , and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices , the complaint alleged that "Since on
,or about April 22, 1957, and at alt- times, thereafter , the Respondent has failed and
refused to bargain collectively " with the Union although the Union was designated
by a majority of Respondent 's employees in an appropriate unit as their exclusive
collective -bargaining representative in a Board -conducted election, and pursuant
thereto was certified by the Board as the exclusive bargaining representative of these
employees . Allis-Chalmers Manufacturing Co., 117 NLRB 744. The Respondent's
answer admits that it refused to bargain with the Union as exclusive bargaining rep-
resentative of the employees composing said unit , but denies it thereby violated
the Act . The answer affirmatively avers in substance that the Union does not hold
a valid certification from the Board as the bargaining representative of said em-
ployees because the election pursuant to which such certification was issued was
invalid.
Pursuant to notice a hearing was held at Pittsburgh , Pennsylvania , on August
27, 1957, before Charles L. Ferguson , the Trial Examiner duly designated to con-
duct same . The General Counsel , the Respondent, and the Union were represented
by counsel and other representatives. Full opportunity to be heard was afforded all
parties. After the hearing Respondent filed a brief which has been examined and
considered.
ALLIS-CHALMERS MANUFACTURING COMPANY 647
Upon the entire record in the case , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits:
1. Respondent is, and has been for a long period of time a Delaware Corpora-
tion having its principal office at West Allis , Wisconsin , and operating plants
in various states of the United States, including Illinois, Indiana , Ohio, Massa-
chusetts , California , and Pennsylvania , where it is engaged in the production,
manufacture , sale and distribution of heavy machinery and farm equipment.
Only the Respondent 's Pittsburgh , Pennsylvania plant is involved in this pro-
ceeding.
2. During the year ending May 31, 1957, the Respondent , in the course
and conduct of its business operations at its Pittsburgh , Pennsylvania plant,
caused to be manufactured , products valued at in excess of $ 1,000 ,000, of
which in excess of $1,000 ,000 was sold , shipped, and transported from said
Pittsburgh , Pennsylvania plant in interstate commerce to states of the United
States other than the Commonwealth of Pennsylvania.
3. During the year ending May 31, 1957, Respondent in the course and
conduct of its business operations at its Pittsburgh plant caused to be purchased,
materials , supplies, and equipment valued in excess of $1,000,000, of which
in excess of $1,000 , 000 was transported and shipped in interstate commerce
to its Pittsburgh , Pennsylvania plant from and through states of the United
States other than the Commonwealth of Pennsylvania.
I find that Respondent Company is , and was at all material times , engaged in
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act, and that this
proceeding comes within the standards fixed by the Board for the exercise of its
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, AFL-CIO, herein called the Union , is a labor organization ad-
mitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
On September 17, 1956, the Union filed a representation petition. In its petition
the Union described the bargaining unit which it sought as "All technical em-
ployees of the Engineering Department " of the Respondent 's "Pittsburgh Works "
At the hearing on the petition the parties "entered into a stipulation for certifica-
tion upon consent election." The unit, as agreed upon and stipulated , was defined
as:
All Designers "A," Designers "B," Draftsmen "A," Draftsmen "B," Re-
tailers and Tracers presently so classified in the drafting sections of the product
engineering department of the Allis-Chalmers Manufacturing Company at its
Pittsburgh , Pennsylvania Works , excluding employees of the engineering de-
velopment section , guards, professional employees and supervisors as defined
in the Act , and all other employees.
The agreement provided for the holding of a representation election , under the
supervision of the Regional Director , among the employees in the stipulated unit.
Pursuant to the stipulation for certification upon consent election, an election by
secret ballot was conducted on October 17, 1956 , under the direction and super-
vision of the Regional Director for the Sixth Region. Of the "approximately 94
eligible voters " in the stipulated unit, 47 cast votes for , and 45 against , the Union.
There were no void or challenged ballots. On October 22, 1956, the Employer
filed timely objections to conduct affecting the results of the election . The Regional
Director conducted an investigation of the objections and, on December 21, 1956,
issued his report on objections in which he found that the Employer 's objections did
not raise any substantial or material issues with respect to conduct affecting the
election and recommended that the objections be overruled . Thereafter, the Em-
ployer filed timely exceptions to the Regional Director 's report with supporting brief,
and the Union , as petitioner , filed a memorandum in support of the report
On March 22, 1957, the Board issued its Decision and Certification of Repre-
sentatives ( 117 NLRB 744), finding that the stipulated unit constituted "a unit ap-
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate for the purposes of collective bargaining ," and, "in agreement with the
Regional Director ," that there was "no merit in the Employer 's objections." In
accordance therewith the Board certified the Union as "the exclusive representative
of all the employees " in such unit "for the purposes of collective bargaining."
On April 2, 1957, C. J. Hyde, international representative of the Union, wrote
and dispatched the following letter to D. A. Griffith, manager of Allis-Chalmers
Manufacturing Company, at Pittsburgh:
DEAR MR. GRIFFITH : So that we may prepare ourselves for the pending
negotiations in behalf of the Product Design Drafting Section , request is hereby
made for the following information.
a. Seniority dates and birth dates of each employee in the Bargaining
Unit.
b. A list containing the name and classification of each employee in
the Bargaining Unit.
c. A list containing the current rate of pay , excluding the cost of living
allowance currently paid each employee in the Bargaining Unit.
Also, will you advise us of the dates on which we may begin negotiations.
Thanking you in advance for your cooperation in this matter , and awaiting
your speedy reply , I remain,
Very truly yours,
C. J. HYDE,
Int'l. Representative U. A. W.
Under date of April 4, 1957, the assistant to the Company's general manager
at its Pittsburgh Works wrote International Representative Hyde as follows:
This is in reply to your April 2 letter to Mr. Griffith requesting certain
information concerning Drafting Personnel in the Bargaining Unit covered by
the NLRB decision in Case No. 6-RC-1843.
The ruling in this matter is now being reviewed by our Counsel and we will
advise you as to our position as promptly as possible.
Thereafter, on April 22, 1957, the assistant general manager of Respondent's
Pittsburgh Works sent the following letter to International Representative Hyde:
RE: NLRB Case No. 6-RC-1843
DEAR MR. HYDE: The Company is convinced after study of the National
Labor Relations Board's Decision in the above case that the Board erred seri-
ously in issuing the Certificate of Representation.
The issues involved are of such grave import that further review of the
Board's action is essential in the best interests of all concerned. Accordingly,
we must decline your April 2 request to meet for the purpose of collective
bargaining for the subject employes.
We are attaching a copy of a letter to our Pittsburgh Works employes
explaining in some detail our position on this matter.
Thus the Company refused of meet and bargain with the Union, or to supply it
with any of the information requested by its letter of April 2, although on March
22, 1957, the Union had been certified by the Board as the exclusive representative
for the purposes of collective bargaining of all the employees in the unit above
defined. Such refusal by the Company brought about this proceeding.
Respondent admits that it refused to bargain with the Union , but denies that
such refusal constitutes a violation of Section 8 (a) (1) and ( 5) of the Act, as
alleged in the complaint, because, says the Respondent, the Board's "certification
is invalid and of no force or effect." In that connection Respondent contends
that the Board's certification "in this instance was defective because it was based
on a defective election," and that "The Board's decision overruling objections to
that election is inoperative and void because it is not based on substantial evidence
on the record considered as a whole and is not in accordance with established
Board policy . . . and was reached by a procedure . . . contrary to the established
regulations of the Board , and in violation of due process of law."
The employees comprising the unit involved are salaried and technical employees
working in the product engineering section of the engineering department of the
Company's Pittsburgh Works. The Union "represents the production and mainte-
nance employees at various plants of the Employer ," and as of the date of the
election it had represented the production and maintenance employees (hourly paid
shop employees ) at the Pittsburgh Works for approximately 7 years and 3 months,
having been so certified on July 7, 1949.
ALLIS-CHALMERS MANUFACTURING COMPANY 649
"The polls were scheduled to open at 10 A. M. on October 17, 1956. Between
4:00 p. in. and 5:00 p. m. of the previous afternoon the employer distributed to
all employees in the voting unit a letter stating the Employers' viewpoint concern-
ing the election." This letter, set out below in full, was directed: "To Technical
Employees of the Engineering Department, Product Engineering Section-Pittsburgh
Works" and was signed: "D. A. Griffith, General Manager, Pittsburgh Works."
I think you all know that the National Labor Relations Board will conduct
an election at the plant on Wednesday, October 17, to determine whether
you desire the UAW, AFL-CIO to be your collective bargaining representa-
tive. We are cooperating so that you can promptly decide whether union
representation is necessary or desirable.
Some questions have been raised as to the policy and attitude of the
company in this matter. I think you should be frankly advised of the com-
pany's viewpoint in order to clear up any possible misunderstanding.
The company employs more than 40,000 people. Many thousands of our
people are not represented by a union. On the other hand, the company has
collective bargaining agreements with CIO-AFL unions-including the UAW.
The company follows a firm policy of fair and courteous treatment of all
employees whether or not they are represented by a union. I would like to
briefly review with you some of the substantial benefits which the company
has voluntarily placed into effect for salaried employees:
1. Group Life Insurance.
2. Health and Accident Insurance.
3. Vacation Plan.
4. Paid Holidays.
5. Liberal Overtime Provisions.
6. Annual Improvement Salary Increases.
7. Cost-of-Living Adjustment Plan.
8. Pension Plan.
9. Education Opportunities Through College Tuition Refund Plan.
In addition, the Company provides steady year-round employment oppor-
tunities at salaries comparable to community rates. Also, we have always
extended considerate and sympathetic assistance in times of sickness or other
misfortune.
Now these are just a few of the things the company has done to make
your Pittsburgh Works department a good place to work. I think that you
understand the company sincerely has your interest and welfare at heart and
is continually striving in additional ways to contribute to your well-being as
employees.
Of course, it is customary for unions to talk about getting a lot of things.
But, I really don't know what the union could do to get more for you than
you are getting now. Ask yourselves what you can reasonably expect a union
to accomplish for you.
Take, for example, the vacation plan-the union could not sensibly demand
a more liberal vacation plan for you than the one now in effect for our
thousands of salaried people around the country.
Perhaps you may be told that something can be gained by going out on strike.
Well, you may have observed that in strike situations involving loss of weeks
and months of pay, employees rarely gain any benefit which makes up for their
personal loss.
You should carefully consider whether, under the circumstances, union rep-
resentation can gain for you anything which would not come to you simply
because you are a member of the Allis-Chalmers family.
Now I want to make one thing clear-whether or not you vote for union
representation-you are going to be treated with the same courtesy and con-
sideration as you always have. My door is always open to discuss any prob-
lems you may have and, of course, your supervisors are always pleased to dis-
cuss any questions that you may have relating to your work or personal
problems.
Finally, may I remind you, you have the free legal right to vote for union
representation-and an equal right to vote against union representation.
If by the distribution of this letter between 4 and 5 p. m. in the afternoon of the
day before the election, scheduled to begin at 10 a. in. the next morning, the Company
thought to get to the voters the last printed word or argument in the campaign, such
650 DECISIONS OF NATION AL LABOR RELATIONS BOARD
was not the case. "Early the following morning" the Union "prepared a letter in
reply to the Employer's letter and distributed it" to the voters "sometime between
7:45 and 8 A. M." The Union's letter was on the letterhead of the International
Union, and was signed, "The Organizing and Contract Study Committee." It
follows:
DEAR FELLOW WORKERS: Late yesterday afternoon we received a communi-
cation from our top Local Management listing the "Substantial Benefits placed
into effect for salary employes." We have been hearing that same line of idiotic,
baseless propaganda from the supervision and supposed supervision in our
Departments for the past two weeks.
Local Management goes to great length to impress us with their generosity-
Lets look at the facts-The items listed in our letter of yesterday are benefits
negotiated with AC for Production and Maintenance people by UAW and passed
along to us in restricted form-Had it not been for negotiations with the Union
we are certain that many of the benefits would not have been granted.
We feel that we should not be in position of being completely at the mercy
of the Company to pass along to us the scraps from the Bargaining Table after
negotiating with the Shop Union, our group is entitled to this same considera-
tion as the other Company workers in resolving our problems at the Bargaining
Table.
We the members of the Contract Study Committee and Organizing Committee
have studied the proposition of forming a Union very closely and we sincerely
feel that the time has long since passed for each of us to fight our own battles
and depend on how good the Boss may or may not feel when we talk to
him. . . . In unity there is strength. . . . By joining together to settle our prob-
lems across the Bargaining Table we sincerely feel that a greater measure of
Social and Economic justice can be obtained.
WE URGE EACH OF YOU TO VOTE YES__________________________
Fraternally yours, -
As above noted, there were 94 eligible voters, 47 votes were cast for the Union,
and 45 against. There were no void or challenged ballots.
The Company timely filed objections to conduct affecting the results of the elec-
tion. The objections alleged, in substance, that the letter distributed by the Union
on the morning of the election "so lowered the standards of campaigning that it was
impossible for the uninhibited desires of the employees to have been determined,"
in that:
(1) the letter contained certain false statements, (2) the distribution was made
at a time which made it physically impossible for the Employer to prepare and
distribute any rebuttal before the opening of the polls, (3) the eligibility list
comprised a substantial number of employees whose service and experience
with the employer was insufficient to apprise them of the falsity of the state-
ments complained of, and (4) if the false statement resulted in obtaining even
one vote for the Petitioner [the Union], then the uninhibited desires of the
employees were not in fact determined.
As to the alleged false statements it was the Company's position that the Union's
letter, distributed between 7:45 and 8 a. in. the morning of the election, falsely as-
serted that the benefits for salaried employees referred to in the Company's letter of
the previous late afternoon were the result of the Union's negotiations with the Com-
pany for the maintenance and production, or hourly paid, employees, and that the
letter falsely stated that such benefits were passed along in restricted form to the
salaried employees. In support of this contention the Company submitted evidence
purporting to show that with one exception, which was not the subject of union ne-
gotiations, the benefits itemized in its letter were in effect for the salaried employees
before the Union was certified for the Pittsburgh Works or before the benefits became
effective for the hourly employees there, and that the benefits enjoyed by the salaried
employees are at least comparable to those enjoyed by the employees at the Pitts-
burgh Works who are represented by the Union.
Upon investigation concerning the benefits enjoyed by the salaried employees,
members of the stipulated unit, and when some were first initiated, the Regional
Director found that prior to the advent of the Union as bargaining representative of
the production and maintenance employees at the Pittsburgh Works, the salaried
employees there already had some form of group life insurance, health and accident
insurance, vacations, paid holidays, overtime provisions and pensions. As to the
"annual improvement salary increase," and "the cost of-living adjustment plan," the
ALLIS-CHALMERS MANUFACTURING COMPANY 651
Regional Director found that following negotiations between the Company and the
Union, as the bargaining representative of the maintenance and production workers
at the Company's West Allis Works, these benefits were first included in the June
30, 1950, contract between the Company and the Union for the Company's West
Allis Works, and were subsequently incorporated in contracts covering other plants;
the Pittsburgh Works contract with the Union was, executed on July 22, 1950. On
the same day that the Company executed the contract with the Union for the West
Allis Works it announced "the extension of a salary equivalence of the annual im-
provement salary increase and the cost-of-living adjustment plan to the unrepresented
salaried employees. These became effective for the salaried employees at the Pitts-
burgh Works on July 1, 1950, and for the Pittsburgh Works employees represented
by [the Union] on July 17, 1950." The Regional Director concluded that "the
benefits of health and accident insurance , the annual improvement salary increases,
and the cost-of-living adjustment plan" were, at the time of the election, "the same
for both the employees represented by [the Union] and the unrepresented salaried
employees."
The plan for educational opportunities through college, "available to any employee
interested in taking advanced study in engineering , science, and business adminis-
tration," was found by the Regional Director never to have been a subject of
negotiations with the Union.
In his report the Regional Director sets out a cross-comparison of the group life
insurance, vacation, and paid holiday benefits of the employees represented by the
Union and the unrepresented salaried employees respectively. No specific conclusions
are drawn therefrom. The vacation plan seems to be the same with the exception
that the hourly employees, represented by the Union, are allowed a vacation of
11/2 weeks after 2 years while the salaried employees are allowed 2 weeks after
working 2 years. As to paid holidays the comparison shows that after 30 days of
service the hourly paid employees are allowed, 7 holidays with pay and the salaried
employees 8, the additional day in the case of the salaried employees being
Veterans' Day. The report further states:
Because of the difference between the salaried and hourly-paid systems, no
specific comparison of overtime benefits as between hourly and salaried em-
ployees has been submitted by the parties or made by the undersigned. The
retirement pension benefits appear to be substantially similar for the salaried
and hourly employees. The Employer, however, contends that the salaried em-
ployees enjoy a more favorable pension program since that program includes
an additional life insurance coverage prior to retirement, which is not avail-
able to production and maintenance employees. However, the Petitioner con-
tends that its pension program is better because it provides for employee par-
ticipation through the Petitioner in the administration of the pension program.
The Regional Director noted the position of the Union to be "that the reference
in its letter to benefits negotiated by it with the Employer does not necessarily refer
to the time when a particular item may have been instituted by the Employer but
includes the various benefits and improvements with reference to those various items
negotiated by the Petitioner [the Union] during periodic negotiations, and includes
negotiations beyond the local level," and that "with respect to some of these
items . . . improvements and additional benefits have been negotiated by [the Union]
with the Employer before being extended to unrepresented salaried employees at the
Pittsburgh Works." The Regional Director also noted that "no evidence was sub-
mitted to indicate in what way these various benefits passed on to the salaried em-
ployees were in restricted form," and that the Union' s assertion that "the benefits
were passed on to salaried employees in restricted form appears to be inaccurate."
However, he concluded that "Insofar as the Petitioner's letter refers to the role of
the Petitioner in the achievement of benefits by the salaried employees . . . this is
essentially a matter of interpretation and cannot conclusively be said to constitute
a falsity."
Referring to the Company's contention that a substantial number of the em-
ployees eligible to vote had insufficient service and experience with the Employer
to apprise them of the alleged falsity of the Union's statements , the report of the
Regional Director says:
In support of this the Employer submitted evidence to show that 20 of the
employees in the voting unit were hired during 1956, including 5 in September,
the last being hired on September 21, 1956. It also appears that 11 employees
in the voting unit transferred from the production and maintenance unit, in-
cluding 4 in 1956.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to this the Regional Director appears to aaopt and confirm the Union's position,
set out in the report as follows:
Since a number of employees in the voting unit have transferred from the pro-
duction and maintenance unit, since employees in the voting unit and employees
represented by the Petitioner work in the same building and have many oppor-
tunities to communicate with each other, both in and out of the plant, and since
various benefits and contract conditions negotiated between the Employer and
Petitioner are often publicized . . . the employees in the voting unit have sub-
stantial opportunity to be familiar with the benefits enjoyed by the production
and maintenance employees as compared with their own.
The Regional Director then cites the rule of the Merck case 1 which follows pro-
nouncements of the Board in previous cases that: "Absent threats or other elements
of intimidation we will not undertake to censor or police union campaigns or con-
sider the truth or falsity of official union utterances, unless the ability of the em-
ployees to evaluate such utterances has been so impaired by the use of forged cam-
paign material or other campaign trickery that the uncoerced desires of the em-
ployees cannot be determined in an election."
Referring to the Gummed Products Company case,2 relied upon by the Company,
where the Board set aside an election because of representations "so misleading as
to prevent the exercise of a free choice by employees in the election," the Regional
Director expressed the opinion that the Union's "conduct in the instant case is sub-
stantially different from the willful and deliberate repeated misrepresentations pres-
ent" in that case. In that connection he said:
Unlike the Gummed Products case, Petitioner's statements herein were neither
made nor reaffirmed in the face of specific contradiction by the Employer, did
not deal with matters peculiarly within the knowledge of the Petitioner, and
did not relate to working conditions of other employers.
The Regional Director finds and concludes:
... that no campaign trickery was involved herein and that the employees were
entirely competent to evaluate the statements complained of. Considering all
the circumstances and the full context of the Petitioner's letter, it is the con-
clusion of the undersigned that the challenged statements did not exceed per-
missible campaign propaganda and did not prevent the employees from exercis-
ing a free choice in the election. [Emphasis supplied.]
The Regional Director's report then recommends that the Company's objections be
overruled.
The Company filed timely exceptions with the Board to the Regional Director's
report and a supporting brief. The Union filed a memorandum in support of the
report. Upon consideration of the report on objections, the Company's exceptions
and brief, the Union's memorandum, and the entire record in the case, the Board
found that the Employer is engaged in commerce, that the Union is a labor
organization, that a question affecting commerce exists, and that the stipulated unit
is appropriate for the purposes of collective bargaining, all within the meaning of the
Act. Ruling the Company's allegations that statements concerning benefits ap-
pearing in the Union's letter, distributed on the morning of the election, were false,
and its contention that, therefore, the election "should be set aside because the em-
ployees were not in a position to evaluate the truth of the Petitioner's letter," and
the Company "had no opportunity to rebut the assertions of the letter due to the
timing of its distribution, and the Board's Peerless Plywood rule," 3 the Board
said: "The basic principle governing cases such as this is that expressed in Merck
& Company, Inc." (104 NLRB 891, 892.) The Board quotes its rule as stated in
the Merck case and set out above in the analysis of the Regional Director's re-
port. Continuing, the Board's decision (117 NLRB 744, 748) says:
It is clear under Board precedents, as indeed it appears under the very state-
ment of principle set forth above [in the Merck case], that mere falsity does
not alone constitute campaign trickery which warrants setting aside an elec-
tion. Examination of the cases relied upon by the Employer reveals that in
each instance in which the Board has made an exception to this general prin-
ciple, not only was a false utterance made, but the circumstances were such
1 Merck t Co ., Inc., 104 NLRB 891.
2 112 NLRB 1092.
8 Peerless Plywood Company , 107 NLRB 427.
ALLIS-CHALMERS MANUFACTURING COMPANY 653
that the knowledge of the true facts was readily available to the publisher of
the utterance but not readily available to the employees or the other party
or parties . Here the issue of the comparison of the benefits received by the
employees involved to those received by the employees already represented
by the Petitioner , according to the allegation of the Employer in its brief, had
been raised by Petitioner in its campaign literature prior to the Employer's
letter. The employees in the unit worked in the same building as production
and maintenance employees and a number of them had transferred into the
unit from production and maintenance jobs. Thus, the basic question under-
lying the alleged false statements was already in issue before the Petitioner
distributed its letter and the necessary information to evaluate the Petitioner's
claims was close at hand if not in the immediate possession of the employees
in the unit from the time the issue was first raised.
Contrary to the Employer 's contention , it is not material in this case that
the Employer could not address its employees on company time and property
after the distribution of the letter and before the election without violating the
rule of Peerless Plywood Company. As pointed out in that decision, the Peer-
less Plywood rule bans only 1 form of campaigning during the 24-hour period
prior to an election , and not any other form . Moreover , the Board's re-
luctance to censor or police union campaign utterances is not premised on any
assumption that an employer may always have an opportunity to reply to any
specific union utterance . It is based , as indicated above, upon the premise that
in the atmosphere of a preelection campaign , absent unusual circumstances,
employees will have sufficient knowledge to evaluate campaign propaganda.
Accordingly , while not condoning such misrepresentations as the Employer
alleges were contained therein , we are of the opinion that the Petitioner's cam-
paign letter did not constitute campaign trickery such as would require set-
ting aside the election . Therefore , in agreement with the Regional Director,
we find no merit in the Employer 's objections . As the Petitioner received a
majority of the votes cast in the election, we shall certify the Petitioner as rep-
resentative of the employees in the appropriate unit.
In so ruling the Company's objections to the election and exceptions to the Re-
gional Director's report thereon, the Regional Director and the Board followed and
applied well-established and traditional Board policies to the effect that in all cases
where, as here, the validity of a Board election is challenged on grounds other than
direct interference or irregularity in the voting process itself , there is a stong pre-
sumption that ballots cast in secrecy under the safeguards regularly provided by
Board procedure reflect the true desires of the participating employees,4 and "absent
threats or other elements of intimidation ," the Board will not "undertake to censor
or police union campaigns ," or the qualitative claims or propaganda by the parties
to an election , or consider or weigh "the truth or falsity of official union utterances,"
but normally "will allow the good sense of the employees to determine" their merit
and which are true and which are false .5 Exaggerated pretensions, inaccuracies,
partial truths , name calling , and falsehoods, while not condoned by the Board,
may be excused as legitimate propaganda which will not be policed if such prop-
aganda remains "within bounds," and in that connection the question to be decided
is one of degree . e However, the Board imposes some limits on campaign tactics.
If the challenged representations take the form of forged campaign material, de-
liberate deception, or other campaign trickery whereby the ability of the employees
to make a free and untrammeled choice is so impaired that their uncoerced desires
cannot be determined in the election, that election will be set aside .7 However,
the Board has exercised this power sparingly, because unless the record reveals
conduct so glaring that it is almost certain to have impaired the employees ' freedom
of choice , the employees can be taken to have expressed their true convictions in
the secrecy of the polling booth .8
* Maywood Hosiery Mills , Inc., 64 NLRB 146. General Shoe Corporation, 77 NLRB
124
5 Merck d Go, Inc, 104 NLRB 891, 892; Western Electric Company, Inc., 87 NLRB
183; Comfort Slipper Corporation, 112 NLRB 183; Horder's, Incorporated, 114 NLRB
751; West-Gate Sun Harbor Company, 93 NLRB 830.
e Horder's, Incorporated, supra; Gummed Products Company, 112 NLRB 1092; Corn
Products Refining Company , 58 NLRB 1441 ; United Aircraft Corporation, 103 NLRB 102.
7 United Aircraft Corporation, supra; Timken-Detroit Axle Company, 98 NLRB 790;
Gummed Products Company, supra ; Reiss Associates, Inc., 116 NLRB 217.
8 General Shoe Corporation, 77 NLRB 124
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the representation case (6-RC-1843, 117 NLRB 744) the Regional Director
and the Board in agreement therewith found and held, in effect, that no circum-
stances such as would require the election be set aside existed, and that the Union's
pretensions and statements complained of did not constitute "campaign trickery"
as that term is used in Board decisions, but fell within the general category of
legitimate campaign propaganda which the employees concerned were in a position
and competent to evaluate .9
All issues raised by the Company's objections to conduct affecting the results
of the election and by its exceptions to the Regional Director 's report thereon
were resolved and disposed of by the Decision and Certification of the Board in
the representation proceeding. In its decision in that case the Board held that
Respondent's objections did not raise any material or substantial issues with respect
to the election, and overruled same. The Respondent's defense to the unfair labor
practices alleged in the complaint herein rests principally on the same contentions
urged to the Board in the representation proceeding which culminated, as afore-
said, in the certification of the Union. Apparently the Respondent now seeks to
have me, as a Trial Examiner, reverse the Board's decision and certification in
the representation proceeding, or at least ignore it, which, as I conceive my
authority , is not within my province , and permit the Respondent in this case to litigate
again and-anew the issues raised by„and submit evidence in support of, its objections
to conduct affecting results of the election. In that connection the Respondent
made an offer of proof purporting, in substance, to show that the statements made in
the Union's letter , set out supra, were false and misleading , and that , under the
circumstances , the employees composing the unit were not in a position and capable
to evaluate same and that by reason thereof the uninhibited desires of the employees
could not be determined in the election. Thus, by its offer of proof, which was
rejected , Respondent sought to rel'itigate issues determined and resolved by the
Board 's decision in the representation proceeding.
It is a long- and well-established Board policy, confirmed by the courts, that
in complaint cases involving an alleged refusal to bargain it is not permissible to
relitigate issues disposed of in earlier representation proceedings unless there is
evidence which was newly discovered, or unavailable to Respondent at the time
of the earlier proceeding. National Carbon Company, 110 NLRB 2184, and cases
there cited at footnote 4.
Conclusions
It follows that in this unfair labor practices case the decision of the Board and
its certification of the Union in the representation proceeding is conclusive and
binding upon me , and I must , therefore ,' necessarily find, and do, that , as alleged
in the complaint herein , the Repondent , on and after April 22, 1957, failed and
refused to meet with the Union for the purpose of bargaining concerning wages,
hours, and other conditions of employment of the employees in the appropriate
unit, in contravention of its statutory duty to bargain in good faith with the Union
as the exclusive bargaining representative of such employees and in violation of
Section 8 (a) (5) and (1) of the Act.
I also find that the information requested by the Union in its letter of April 2,
1957, is clearly relevant to the negotiation of a contract, and that by its failure to
furnish the requested information the Respondent has further violated its said bar-
gaining obligation contrary to Section 8 (a) (5). Shoreline Enterprises of America,
Inc., 117 NLRB 1619; Glen Raven Knitting Mills, Inc., 115 NLRB 422; American
Smelting and Refining Company, 115 NLRB 55. Since the Respondent's refusal
to furnish such information appears only in the context of the Respondent's general
refusal to recognize the validity of the Union's certification, the Respondent is
directed to furnish the Union with such information upon request.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section 1, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States.
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices violative of Section 8 (a) (1) and (5) of the Act, I shall recommend
9 Comfort Slipper Corporation, supra; Gong Bell Manufacturing Co., 114 NLRB 342.
ALLIS-CHALMERS MANUFACTURING COMPANY 655
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings, and on the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America , AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All designers "A," designers "B," draftsmen "A," draftsmen "B," detailers,
and tracers 10 presently so classified in the drafting sections of the product engineering
department of the Allis-Chalmers Manufacturing Company's Pittsburgh , Pennsyl-
vania, Works, excluding employees of the engineering development section , guards,
professional employees , and supervisors as defined in the National Labor Rela-
tions Act, as amended , and all other employees , constitute a unit appropriate for
the purposes of collective bargaining , within the meaning of Section 9 (b) of the
Act.
3. The Union was on April 2, 1957, is now , and at all material times has been,
the exclusive representative of the employees in the aforesaid appropriate unit for
the purposes of collective bargaining , within the meaning of Section 9 (a) of
the Act.
4. By failing and refusing, on April 22 , 1957 , and since that date , as found in
section III , above, to bargain with the Union as the exclusive representative of the
Respondent 's employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
10 As of the date of the Board's Decision and Certification , March 22, 1957.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies of the Labor Management Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, AFL-
CIO, as the exclusive representative of all employees in the bargaining unit
described below, with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement . The bargaining unit is:
All designers "A," designers "B," draftsmen "A," draftsmen "B," detail-
ers, and tracers presently so classified in the drafting sections of the product
engineering department of the Pittsburgh, Pennsylvania, Works of the Allis-
Chalmers Manufacturing Company, excluding employees of the engineering
development section, guards , professional employees ,, and supervisors as
defined in the Act, and all other employees.
WE WILL furnish said Union , upon request , information concerning the name
and classification, seniority dates, and current rate of pay, of each employee in
said bargaining unit, and other data relevant to the negotiation with said Union
of wages, hours, or conditions of work for employees in said unit.
WE WILL NOT engage in any acts in any manner interfering with the efforts
of said Union to negotiate for or represent the employees in the bargaining unit
described above.
ALLIS-CHALMERS MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.