Lloyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Dec 5, 1957

119 N.L.R.B. 661 (N.L.R.B. 1957)

LLOYD A. FRY ROOFING COMPANY 661
sibly that of Keefer. It would therefore appear that if the cards in
which Hornyak's solicitation is involved are eliminated, the Peti-
tioner's showing is not adequate. The Board has held that such
solicitation by supervisors does, in fact, impair a petitioner's show-
ing.' As the Petitioner's showing is, under these circumstances, inade-
quate, we shall dismiss the petition.
[The Board dismissed the petition.]
a See, for example, Desilu Productions, Inc., 106 NLRB 179.
Lloyd A. Fry Roofing Company and International Longshore-
men's and Warehousemen 's Union (Ind.), Petitioner. Case No.
20-RC-3307. December 5, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on August 2, 1957,1 an election by secret ballot was conducted
on August 26, 1957, under the direction and supervision of the
Regional Director for the Twentieth Region of the National Labor
Relations Board among the employees in the unit found appropriate
by the Board. The parties were furnished a tally of ballots which
shows that of approximately 26 eligible voters, 20 cast ballots for
the Petitioner, and 4 cast ballots against the Petitioner.
Thereafter, the Employer filed timely objections to conduct affecting
the results of the election. In accordance with the' Rules and Regula-
tions of the Board, the Regional Director caused an investigation of
the objections to be made and, on October 16, 1957, issued and served
on the parties his report on objections, in which he found that the
objections are without merit and recommended that they be over-
ruled and that the Petitioner be certified as the exclusive bargaining
representative in the unit found appropriate by the Board. The
Employer filed timely exceptions to the Regional Director's report
as it relates to the Employer's second objection and requested a
hearing on that objection.
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Mem-
bers Rodgers, Bean, and Jenkins].
The Employer's second objection stated that the Petitioner had
promised, and misrepresented, to the employees of the Employer that
in the event they were organized by the Petitioner, and there should
be a subsequent strike, the Petitioner would supply waterfront work
I 'Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 94.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at $30 per day for those who needed it. The fact, the Employer
alleged, was that the Petitioner could not supply such work because
waterfront work is under the jurisdiction of a different local. The
Regional Director found that there was evidence that the Petitioner's
representatives had said they would be able to supply 2 or 3 days per
week of waterfront work, that any member could register in its
hiring hall for permanent or temporary work, that they could then
be referred for longshore work, and that the Petitioner was apparently
competent to do this.
In its exceptions to these findings of the Regional Director, the
Employer argues: (1) He did not pass upon the most important
aspect of the Employer's allegation-that the strike worker would
be paid $30 per day; (2) the Regional Director did not meet the
Employer's allegation that the Petitioner would in fact provide work;
he found only that it would refer registrants; (3) newspaper articles
dated October 22, 1957, reveal that the union directly concerned with
longshore work is organizing the sons of its members into a club,
from which will be drawn any extra help that may be needed. While
this news is dated some 2 months after the election, the Employer
believes that the Petitioner must have known this earlier, although
it was not known either to the Employer or to the public. For these
reasons, the Employer contends, the employees would not have voted
for the Petitioner had they known the true facts with respect to
waterfront work, and it therefore requests a hearing to determine
the extent of the misrepresentations made. It is also to be noted
that the Employer nowhere suggests the $30 figure is erroneous.
We do not agree. The Board's guiding principle, as the Regional
Director pointed out, is that it will not undertake to censor or police
campaign utterances, absent threats or other elements of intimidation,
unless the ability of the employees to evaluate them has been so im-
paired by trickery that their uncoerced desires cannot be determined.'
The Board has found this to be the case where unions have misrep-
resented matters peculiarly within their knowledge, especially in re-
spect to wage rates, because wage rates are obviously a most important
factor in the evaluation of unionization.' We do not believe that any
misrepresentation here, if there were such, is of such critical impor-
tance. Indeed, it might be argued that by pointing out the possibility
of a strike the Petitioner was in fact militating against its prospects
in the election. In sum, we do not believe that the promise of munif-
icent strike benefits impairs free choice as does misrepresentation of
wage rates. We therefore find it unnecessary to determine the extent
of the Petitioner's misrepresentations, if,any, and deny the Employ-
er's request for a hearing.
2 See, for example , Merck & Co., Inc., 104 NLRB 891.
g The Calidyne Company, 117 NLRB 1026; The Gummed Products Company, 112
NLRB 1092.
ALASKA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS 663
As noted above, no exceptions have been filed to the Regional Direc-
tor's findings on the Employer's remaining objections; those findings
are accordingly adopted. Having considered the Regional Director's
report on objections and the Employer's exceptions thereto, and hav-
ing found the Employer's exceptions without merit, we hereby over-
rule them, in accordance with the recommendations of the Regional
Director, and deny the Employer's request for a hearing. As the
Petitioner has received a majority of the valid votes cast in the elec-
tion, we shall certify it as the collective-bargaining representative of
the employees in the appropriate unit.
[The Board certified International Longshoremen's and Warehouse-
men's Union (Ind.) as the designated collective-bargaining represent-
ative of the employees in the unit heretofore found appropriate.]
Alaska Chapter of the Associated General Contractors of Amer-
ica, Inc. and William H. Wright
International Hod Carriers, Building and Common Laborers
Union of America , Local Union 942 and William H. Wright and
Griffin F. Johnson . Cases Nos. 19-CA-988, 19-CB-305, and
19-CB-305-1. December 6, 1957
SUPPLEMENTAL DECISION AND ORDER
On August 3, 1954, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding pursuant to a
settlement agreement entered into by the parties. This Order was
enforced by the United States Court of Appeals for the Ninth Circuit
by a consent decree entered on December 10, 1954. The decree pro-
vided, inter alia, that International Hod Carriers, Building and
Common Laborers Union of America, Local Union 942, hereinafter
referred to as the Union or Respondent Union, make whole William
H. Wright for losses of earnings suffered by reason of discrimination
against him caused by the Union.
The Union and representatives of the Board were subsequently
unable to reach agreement on the amounts of back pay due Wright
under the terms of the court's decree, and the Regional Director
directed a hearing to resolve the disagreement. The hearing was
held on November 13 and 14, 1956, before Trial Examiner Howard
Myers, who issued a Supplemental Intermediate Report on Decem-
ber 11, 1956. As set forth in the copy of his report attached hereto,
the Trial Examiner found a specific amount of back pay due William
H. Wright and recommended that the Union reimburse him in accord-
ance with his findings. The General Counsel filed exceptions to the
119 NLRB No. 93.