Kennametal, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1958

119 N.L.R.B. 1236 (N.L.R.B. 1958)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the original hearing that a designing and drafting unit, if severable
at all, would consist only of those classifications covered by the exist-
ing contract between UE and the Employer. As the engineering de-
signers were then excluded from the coverage of the contract in force
during 1950, and as the Employer did not in any way conceal the
existence of that job classification, we believe that the Union's failure
to raise any issue as to the status of engineering designers was no
oversight but was rather a deliberate choice on its part to continue the
existing arrangement under which engineering designers were ex-
cluded from the unit. That such was the Union's understanding at
the date of the 1950 election is further indicated by its subsequent
failure to question the exclusion of the engineering designers from its
bargaining unit until the negotiations over the 1954 contract. We
regard, moreover, as significant in determining what the Union con-
sidered the scope of its, certification that as late as 1954, the Union's
grievance over certain work assignments to the engineering designers
was not based on any contention that the engineering designers were
covered by the certification, but only that the Company was trans-
ferring work which had formerly been assigned to its members to
employees who were outside the unit.
We conclude that the engineering designers have been excluded
from the unit which the Union and its predecessor have represented
since 1950. Accordingly, a motion for clarification of the certification
is not the proper method for adding the excluded classification to the
existing unit. Instead, the Union should have filed a representation
petition seeking an election among the engineering designers to deter-
mine whether they desire to be added to the present unit of drafts-
men 5 We shall therefore dismiss the Union's request for clarification
of the certification.
[The Board denied the request of American Federation of Technical
Engineers, AFL-CIO, Local 142, for clarification of its certification.]
5 General Motors Corporation, Chevrolet Motors Dzviseon, etc., 117 NLRB 750.
Kennametal , Inc. and International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America,
(UAW), AFL-CIO, Petitioner. Case No. 6-RC-1931. January 3,
1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Board Decision and Direction of Election' an election
by secret ballot was conducted on July 24, 1957, under the direction
1 Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 148.
KENNAMETAL, INC. 1237-
and supervision of the Regional Director for the Sixth Region of the
National Labor Relations Board among the employees in the unit
therein found appropriate. Following the election, the parties were
furnished a tally of ballots which showed that of approximately 860
eligible voters, 529 cast ballots for the Petitioner, 311 cast ballots
against, and no ballots were challenged.
On July 31, 1957, the Employer filed timely objections to the elec-
tion, alleging that the Petitioner "made a series of misrepresentations
designed to influence the choice of the employees prior to the election
so that the uninhibited desires of the employees could not be deter-
mined in the election." It also accused the Petitioner of creating,
through certain publications, an atmosphere of violence around the
election. Thus, the Employer requested the election be set aside. In
accordance with the Rules and Regulations of the Board, the
Regional Director conducted an investigation of the objections and,
on October 31, 1957, issued and served on the parties his report on
objections in which he found that the Employer's objections did not
raise any material and substantial issues with respect to the election
and recommended that the objections be overruled. On November 12,
1957, the Employer filed timely exceptions in which it does not take
issue with the facts set forth in the report but only to the Regional
Director's conclusions and recommendations.
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 [Chairman Leedom and Members Bean and Jenkins].
The objections consist essentially of two types-those involving
alleged misrepresentations and those concerned with the creation of
an alleged atmosphere of violence about the election.
(a) The alleged misrepresentations: First, the Employer objects
to the fact that Petitioner in the "UAW Kennametal Spotlight" of
July 8 misrepresented the Board's holding in its Decision and Direc-
tion of Election. Petitioner stated in the "Spotlight" that the Board
had upheld its contention that the contract between the Employer and
Intervenor 2 was illegal, where in fact the Board held the contract
to be no bar and had further expressly disclaimed making any
finding with respect to the general validity of the contract. Second,
the Employer objects to Petitioner's statements in the July 8 issue
of the "Spotlight" that it is the major union in the carbide tool
industry and represents about 60 percent of the workers. In the same
article with those statements, the Petitioner listed seven companies
in that industry whose employees it represents. Third, the Em-
ployer objects to the fact that in the same issue of the "Spotlight"
the Petitioner incorrectly quoted the management clause in the cur-
2 Local 13082, District 50 United Mine Workers of America , intervened in this proceed-
ing on the basis of its contract with the Employer.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rent • agreement between the Intervenor and Employer.
We agree with the Regional Director that the above objections
are without merit. The rule, the Board applies in situations such
as those presented here is that set forth in Merck & Company, Inc.,
where it held that
Absent threats or other elements of intimidation we will not
undertake to censor or police union campaigns or consider the
truth or falsity of official union utterances, unless the ability
of employees to evaluate such utterances has been so impaired
by the use of forged campaign material or other campaign
trickery that the uncoerced desires of the employees cannot be
determined in an election.
In applying the exception to the above rule the Board has held
that in addition to being false the statement must involve a deliberate
misstatement of facts peculiarly within the knowledge of the utterer
of the statement and not readily available to the employees or other
parties.' Clearly then, statements with respect to the Board's De-
cision and Direction of Election, a public document which was served
upon the Employer and Intervenor and subject to comment in a local
newspaper, cannot be considered as dealing with facts unavailable
to either the employees or the other parties. The misquoting of
"the Intervenor-Employer contract stands in an identical light.5 As
for the statements with respect to Petitioner's representative status
in the carbide tool industry, there is, first, no evidence that Petitioner
does not represent, as it claimed, employees of the 7 companies it
listed, and second, the claim of 60 percent representation was typical
campaign propaganda, readily open to challenge by the Intervenor
and Employer and which the employees were capable of evaluating.6
The Employer also objects to a campaign throwaway distributed
by the Petitioner on July 24, which was captioned "Vicini you Lie"
and which listed the wage rates of an area competitor organized
by the Petitioner. This flyer was circulated to challenge the accuracy
of a similar wage camparison previously circulated by Vicini, the In-
tervenor's regional director. The Employer argues that the Peti-
tioner's listing was incorrect and that Vicini was not a liar. The Re-
gional Director found that Vicini's listing of wage rates was open to
question, that the Petitioner correctly listed the wage rates, and
that its fault, if any, involved the failure to list the wage rates of
;2 classifications covering 2 employees. We agree with the Regional
Director that the Petitioner's leaflet did not contain a willful mis-
3 104 NLRB 891.
:'Allis-Chalmers Manufacturing Co., 117 NLRB 744; Wheelerweld Division, C. H.
Wheeler Manufacturing Company, 118 NLRB 698.
6 Moreover, in the July 11 "Spotlight" the Petitioner corrected this misquoting.
6 Wheelerweld Division, etc., supra.
KENNAMETAL, INC. 1239
representation and that the employees had sufficient information
available to evaluate the conflicting claim of the two unions.
In 'yet another objection, the Employer contends that in the July 23
issue of the "Spotlight," Petitioner printed a copy of the Board's
official ballot in such a manner as to convey the impression that the
'United States wanted the employees to vote for the Petitioner. The
ballot as printed was unaltered and clearly marked "Sample" as
required by Board decision.' The Regional Director concluded, and
having examined a copy of the material we agree under these circum-
stances, that the fact that union propaganda appeared on the same
page as the reproduced sample ballot did not give the impression of
governmental support for the Petitioner, and thus did not tend to
interfere with the employees' freedom of choice in the election. There-
fore, we find this objection to be without merit.
(b) The alleged atmosphere of violence : In various of its campaign
publications the Petitioner made reference to, or reproduced news-
paper articles or other matter, dealing with alleged strike violence
involving the Intervenor or alleged strong-arm tactics used by certain
of Intervenor's representatives against some of its members. The
Regional Director concluded that it was clear in the publications or
flyers involved that the incidents of violence did not refer to the
current election campaign. He further noted that that campaign
was completely devoid of any violence. The Employer in its excep-
tions offered no contrary evidence on these points. Accordingly, we
agree with the Regional Director that the objections dealing with an
alleged atmosphere of violence are without merit.'
(c) The Employer also objected to a false statement of one of
Petitioner's district representatives which appeared in a local news-
paper on July 25. We agree with the Regional Director that this
objection is without merit as the statement, appearing after the
election, could not possibly have affected the election results.
The Employer also objected to certain statements appearing in the
July 23 issue of the "Spotlight." It is conceded that the statements,
involving insurance benefit comparisons were in part erroneous.
However, the Regional Director found that the objectionable parts of
the July 23 "Spotlight" were never distributed. On first noting the
errors, the Petitioner had the "Spotlight" rerun, but certain mis-
statements appeared in the new copies. The Petitioner then had the
whole section on insurance benefits deleted before the "Spotlight"
was distributed. The Employer in its exceptions notes that the
Petitioner failed to produce 150 copies of the first run of the "Spot-
light" and that these copies must, therefore, have been distributed.
However, the Petitioner explained that these "missing" copies have
T Allied Electric Products, Inc., 109 NLRB 1270.
8 Dallas City Packing Company, 116 NLRB 1609, p. 1611.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been used for certain intraunion purposes. No evidence was offered
to confute this explanation. The Employer also argues that as its
employees aided in deleting the insurance benefit information' from
the "Spotlight" there was distribution of the erroneous material, at
least with respect to them. Such an argument is wholly unpersuasive
if for no other reason than that Petitioner's having the employees
delete the matter certainly operated as an effective retraction or cor-
rection of the erroneous information with respect to such employees.
Thus, we find that this objection is without merit. We further find
that certain of the Employer's objections relating to the "atmosphere
of violence" which were based on articles also deleted from the above
mentioned July 23 ",Spotlight" are without merit, as there is no
showing that such articles were distributed among the employees.
We have, in agreement with the Regional Director, found all of
the Employer's objections to be without merit and they are hereby
overruled. As the Petitioner received a majority of the votes cast in
the election we shall certify the Petitioner as representative of the
employees in the appropriate unit.
[The Board certified International Union, United Automobile
Aircraft & Agricultural Implement Workers of America, (UAW),
AFL-CIO, as the designated collective-bargaining representative of
the employees in the appropriate unit at the Employer's Latrobe,
Kingston Station, and Chestnut Ridge, Pennsylvania, plants.]
Brown Survey Corporation and Isaac B. Holden . Case No. 2-CA-
5003. January 6,1958
DECISION AND ORDER
On August 2, 1957, Trial Examiner A. Norman Somers 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 and 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 this case to a three-member panel [Chairman Leedom and
Members Rodgers and Bean].
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.
119 NLRB No. 143.