Kawneer Co.

National Labor Relations Board - Board Decisions

Feb 5, 1958

119 N.L.R.B. 1460 (N.L.R.B. 1958)

1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kawneer Company and District No. 122, International Associa-
tion of Machinists, AFL-CIO, Petitioner . Case No. 13-RC=5670,
February 5, 1958
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election 1 of the Board,
dated October 21, 1957, an election by secret ballot was conducted on
November 6, 1957, under the direction and supervision of the Regional
Director for the Thirteenth Region among the employees in the ap-
propriate unit. Following the election the Regional Director fur-
nished the parties a tally of ballots which showed that of approxi-
mately 59 eligible voters, 54 cast valid ballots of which 33 were for, and
21 against the Petitioner.
On November 13 and 14, 1957, the Employer filed timely objections
to the election. In accordance with the Rules and Regulations of the
Board the Regional Director conducted an investigation of the objec-
tions and on December 12, 1957, issued and served on the parties his
report on objections, in which he found that the Employer's objec-
tions did not raise any substantial and material issues with respect
to the election and recommended that the objections be overruled. On
December 30, 1957, the Employer timely filed 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, Bean, and Jenkins].
Upon the entire record in the case; the Board finds:
On November 4 and 5, 1957, the Petitioner distributed a leaflet to
the Employer's employees entitled "Contract Won." The leaflet stated
that on November 2 the employees of Geneva Modern Kitchens had
ratified a new contract and it enumerated a number of benefits which,
according to the leaflet, were "some of the many benefits the employees
of Geneva Modern Kitchens have gained in this new contract." The
Employer in its objections contends that both leaflets contained false
and misleading statements of facts within the special knowledge of
the Petitioner which the employees were unable to evaluate.
In this leaflet, among other things, stated as items 11 and 12, were the
following :
11. Employees with 6 months service receive 1/2 week vacation-
employees with one year of service receive two weeks vacation and
employees with 15 years or more receive 3 weeks vacation.
12. Also under the new contract, janitors, firemen, and watch,
men, will receive 1.81 cents per hour.
1 Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 185.
KAWNEER COMPANY 1461
Investigation. revealed that the Petitioner had entered into a con-
tract with Geneva on November 2, 1956. As for vacations, the con-
tract. provides that employees working one year, but less than three
years, receive 1 week's vacation rather than 2 as stated in the leaflet.
As for the pay rate of janitors, firemen, and watchmen, according to
the Regional Director, the contract provides for a pay range of from
$1.73 to $1.90 an hour rather than a flat rate as set forth in the leaflet.
Where one party to a representation proceeding misstates material
facts which are within its special knowledge, under such circumstances
that the other party or parties cannot learn about them in time to point
out the misstatements, and the employees themselves lack the knowl-
edge to make possible a proper evaluation of the misstatements, the
Board will find that the bounds of legitimate campaign propaganda
have been exceeded and will set aside an election.'
In the instant case the Petitioner's claims set forth above as to the
benefits obtained in its contract with Geneva were material misstate-
ments. In the case of vacations, the leaflet doubled the size of the
benefit actually provided for employees having from 1 to 3 years
service. In the case of the pay rate of janitors, firemen, and watch-
men, which might be taken as indicative of the general wage level
obtained, the leaflet misrepresented the rates by indicating that there
was a flat rate rather than a range and stating as the rate one well
above the starting rate for these classifications.3 As the contract had
been entered into by the Petitioner only a few days before the leaflet
was distributed, the knowledge of its contents was clearly within the
special knowledge of the Petitioner, and the employees had no inde-
pendent means of evaluating the truth of the leaflet distributed. The
leaflet was distributed on the 2 days preceding the election, giving the
Employer insufficient time to learn of and point out its misstatements.
Under these circumstances, the instant case falls within the principle
set forth above, and we will set aside the election.'
The Employer also objected to other statements in the Petitioner's
leaflets and excepts to the Regional Director's failure to find that these
2 The Calidyne Company, 117 NLRB 1026; Reiss Associates, Inc., 116 NLRB 217. See
also A.lli.s-Chalmers 31anafacturing Co., 117 NLRB 744.
3In its exceptions , the Employer contends that the Regional Director erroneously found
that present rate range for these employees is from $1.73 to $1.90 an hour and alleges
that the present rate range is $1.65 to $1.82 and will remain such until October 15, 1958,
when the range found by the Regional Director will go int%effect. In this event, the rate
set forth in the leaflet would fall at the top of the contractual rate range rather than
in the middle as found. However, as we find that the misstatement is material even
under the circumstances found by the Regional Director, it is unnecessary to resolve this
factual difference.
See the cases cited in footnote 2, supra. While the Regional Director stated in his
report that the Petitioner contended it misinterpreted its own contract with respect to
vacations, he made no finding of such misinterpretation, there is no indication that the
contract was susceptible of such misinterpretation, and in any event the effect on the
Employer's employees of such a misrepresentation would be no different from that of a
deliberate misstatement. Also, relying on the Board 's decision in Horder's , Incorporated,
114 NLRB 751, the Regional Director found it essential that the misstatements be denied
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituted misstatements as well as his failure to investigate the Em-
ployer's objection that the Geneva leaflet contained other misstate-
ments besides those enumerated by the Employer. In view of the fact
that we have found merit in the objections enumerated above and the
additional objections and exceptions, at least to some extent, raise
issues of fact that cannot be resolved upon the present record, we find
it unnecessary to consider further the remaining objections and ex-
ceptions of the Employer.
[The Board set aside the election held on November 6, 1957.]
[Text of Direction of Second Election omitted from publication.]
by the Employer and repeated by the Petitioner before constituting cause to set aside the
election. We do not agree. In the Herder case, the Board declined to set aside an elec-
tion where there was an actual denial by the Employer and the misstatements were not
repeated. However. where, as in the instant case and the above-cited cases, there is not
even an opportunity for a denial , no such requirement exists.
International Furniture Company and Upholsterers Local 15A
and Carpenters Local 1959 , AFL-CIO, Joint Petitioner
International Furniture Company and Teamsters Local 196,1
Petitioner
International Furniture Company and Local 1010 , United Furni-
ture Workers of America, AFL-CIO, Petitioner .2 Cases Nos.
91-RC-4949, 21-RC-4950, and 21-RC-4951. February 6, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing was held in these consolidated
cases before Ben Grodsky, hearing officer.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Rodgers and Bean].
At the hearing the Employer moved to dismiss the petitions on
grounds pertaining to the sufficiency of the Petitioners' showing of
interest, alleging in substance that the authorization cards submitted
in support of the petitions did not comply with the provisions of the
Board's Rules and Regulations and Statements of Procedure. In
support of its motion the Employer adduced and the hearing officer,
over the objection of the Petitioners involved, received in evidence
certain documents and testimony relating to the showing of interest
' The Board having been notified by the AFT CIO that it deems the Teamsters' certifi-
cate of affiliation revoked by convention action, the identification of this Union is hereby
amended.
2 Petitioners in Case No. 21-R,C-4949 are referred to as Upholsterers and Carpenters
respectively. Petitioner in Case No. 21-RC-4950 is referred to as Teamsters and Peti-
tioner in Case No. 21-RC-4951 is referred to as Furniture workers.
119 NLRB No. 187.