Montrose Hanger Co.

National Labor Relations Board - Board Decisions

Mar 13, 1958

120 N.L.R.B. 88 (N.L.R.B. 1958)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montrose Hanger Company and District #128, International
Association of Machinists , AFL-CIO, Petitioner. Case No.
4-RC-3408. March 13, 1958
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
On October 25, 1957, pursuant to a Decision and Direction of
Election issued in the above-entitled proceeding,' an election by secret
ballot was conducted under the direction and supervision of the
Regional Director for the Fourth Region among the employees in
the unit found appropriate by the Board. Upon the conclusion of the
election, the parties were furnished with a tally of ballots w}iich shows
that of 108 ballots cast, 30 were for the Petitioner, 73 against, and
5 were challenged. The challenged ballots are insufficient to affect
the outcome of the election. Thereafter, the Petitioner filed timely
Objections to conduct affecting the results of the election. On Jan-
uary 16, 1958, following an investigation, the Regional Director issued
his report and recommendations on objections, in which he found
merit in one of the Petitioner's objections, but'found no merit in the
remaining objections and recommended that they be overruled, and
further recommended that the election of October 25, 1957, be set
aside and a new election ordered. Thereafter, the Employer filed
timely 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 [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
In the objection found by the Regional Director to have merit, the
Petitioner contended that the Employer interfered with the election
by distributing to the employees just before the election a paycheck
stub, along with the paycheck, which listed payroll deductions that
the Employer would make if the Petitioner won the election 2 In his
investigation, the Regional Director found that along with their pay-
check the Employer distributed to the employees a paycheck stub
which states the following under the column for miscellaneous deduc-
tions : "Union Dues, $30.00 A Year (at least) For Dues Alone PLUS
Deductions for Fines and Assessments !" Next to this on the stub is
a large arrow pointing to the deductions column, on which is printed
the statement, "THIS WILL BE ON YOUR PAY CHECK IF THE
UNION GETS IN."
i Not published.
2In its objections, the Petitioner contended that the statements on the check stubs
concerning payroll deductions were false and also contended that their circulation by
the Employer violated the Board 's 24-hour rule as enunciated in Peerless Plywood Com-
pany, 107 NLRB 427. The Regional Director found no merit in these contentions, which
are discussed in greater detail in the text.
120 NLRB No. 15.
MONTROSE HANGER COMPANY 89
The Regional Director found that the objections concerning the
distribution of the paycheck stubs raised 3 interrelated questions :
(a) Was the $30 amount on the check stubs false and misleading cam-
paign propaganda? (b) Was the timing of the distribution calcu-
lated to, and did it, interfere with the free choice of the employees?
(c) Was the means used a violation of the Board's Peerless Plywood
rule?
As to (a) -the accuracy of the alleged $30 deduction-the Regional
Director found that the only sister local of the Petitioner in Montrose,
Pennsylvania, the city involved herein, had dues of $2.50 per month,
or $30 per year. He further found, pursuant to information furnished
by the Petitioner, that of 22 other sister locals of the Petitioner within
a 100-mile radius of Montrose, 4 charged less than $2.50 per month'
and 18 charged between $2.50 and $3 per month. He also found that,
while no fines or assessments had been exacted in the past by any of
the Petitioner's sister locals, the constitution of the Petitioner's parent
authorized assessments and fines. Accordingly, the Regional Director
concluded that the statements made on the check stubs were not false
or misleading. He found, moreover, that the Petitioner's preelection
leaflets covered in some detail the question of dues, fines, and assess-
ments and that the employees thus had the opportunity to evaluate
the Employer's statements. Accordingly, the Regional Director con-
cluded that the statements on the check stub did not, in themselves,
interfere with the free choice of the employees.
As to (b)-the timing of the distribution-the Regional Director
found that Friday, the day of election, was the regular payday for
employees. He also found that the Employer accelerated the actual
hour of the distribution of the paychecks without notifying the Board
agent conducting the election. The Employer informed the Regional
Director that this was done because the election was being held around
noontime, the usual hour of distribution, and it believed that, if it
waited until after the election, many employees would leave the plant
without their checks, since the working day was over for most of
them at noon. Citing Peerless Plywood,4 wherein the Board expressly
reserved to parties the privilege of distributing campaign literature
on company premises at any time before an election, the Regional
Director concluded that the timing of the distribution did not interfere
with the free choice of the employees.
In the absence of any exceptions thereto, we adopt the foregoing
findings. However, with respect to (c)-the means utilized by the
Employer in distributing its antiunion literature-the Regional Di-
8 The Regional Director also found that the constitution of the International Associ-
tion of Machinists required dues of not less than $2 a month.
4 The Regional Director also cited the Comfort Slipper (112 NLRB 183) case, where
the Board held that the distribution of campaign literature need not be so timed as to
afford other parties a chance to reply.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector found that the Employer used a method that "is more than
argument, presentation of information, or persuasion, it is a device
which exploits the fear of personal loss by manipulation of the docu-
ments used in normal pay procedure." He also found that it is "real-
istic to rule that the Employer may not use a form indispensable to
employees in the securing of their pay for the purpose of promoting
fear of personal monetary loss in the imminent prospect of a Board
election." I The Regional Director therefore concluded that "under
the circumstances of this case the use of an imprimatur on the normal
payroll documents to influence the outcome of an election causes
economic apprehensions and thereby falls below the standards of
campaigning to a level which impairs the free and untrammeled ex-
pression of choice by the employees," within the rule of Gummed
Products.' Accordingly, the Regional Director recommended that this
objection be sustained, the election of October 25, 1957, be set aside,
and a new election ordered.
In its exceptions, the Employer contends, inter alia, that the dis-
tribution of the attachments to the employees' pay checks did not
interfere with the employees' free choice of a bargaining represent-
ative in the election. We agree.
In the course of its campaign to win the adherence of the employees,
the Petitioner distributed several circulars which, as found by the
Regional Director, discussed in some detail its policies regarding
dues, fines, and assessments. In opposition to these statements, the
Employer distributed the paycheck stub, at issue here, in which it
stated its prediction as to the cost to the employees of their adherence
to the Petitioner. This prediction was found by the Regional Director
to be, in substance, accurate. We agree with this finding, but we
cannot agree that the medium used by the Employer to disseminate
its prediction was, nevertheless, such as to interfere unduly with the
employees' freedom of choice. While the Board has heretofore set
aside elections because of the content of preelection literature, it has
not considered the form of such literature or the means used to dis-
seminate it as per se ground for setting aside an election.' Moreover,
contrary to the Regional Director, we do not find that this case falls
within the Gummed Products' rule. In order to set aside an election
under this rule, there must be misrepresentation of vital facts and
:The Regional Director also emphasized at this point that the Employer had altered
the usual hour for paying employees, "apparently in order that this type of electioneering
material might be in the hands of the employees just piior to the opening of the polls."
However, as stated above, lie had previously found that the timing of the distribution
had not interfered with the election
0 112 NLRB 1092
' Cf. Bata Shoe Company, Ine, 116 NLRB 1239, involving a mtsrep, esentation on a
paycheck stub of the amount that would be deducted if the union won the election The
Board members who participated in that case were equally divided on the question whether
this was sufficient basis for setting aside the election.
8112 NLRB 1032
RIO DE ORO URANIUM MINES, INC. 91
the party making the misrepresentation must be in an authoritative
position to know the true facts. Here, as the Regional Director found,
there were no misrepresentations. Moreover, it seems manifest that
the employees would realize that the Employer was not likely to
have first-hand knowledge of the amount of Petitioner's dues and
assessments and they would be free to weigh the statements of the
Employer against those made by the Petitioner.9 Finally, it is clear
that, as any future deductions for dues, fines, or assessments will have
to emanate from the Petitioner, the employees could not reasonably
have construed the statement on the paycheck stubs as a threat of
reprisal by the Employer.
Consequently, we find that the check stubs distributed by the Em-
ployer did not impair the employees' freedom of choice, but were
merely permissible campaign propaganda. We therefore overrule the
Regional Director's findings as to this objection and do not adopt his
recommendation that the election herein be set aside.
In view of the foregoing, and upon the record as a whole, we find
that the Petitioner's objections do not raise substantial or material
issues affecting the results of the election and they are hereby over-
ruled.10 Accordingly, as the Petitioner failed to secure a majority of
the valid ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for District $128, International Association of Machinists, AFL-
CIO, and that said organization is not the exclusive representative of
the Employer's employees in the unit found appropriate.]
9 Cf F. H. Snow Canning Company , Inc., 119 NLRB 714.
10 In view of our disposition of this case , we do not find it necessary to pass upon the
other exceptions raised by the Employer.
Rio de Oro Uranium Mines, Inc. and Local No. 16, International
Hod Carriers , Building and Common Laborers Union of Amer-
ica, AFL-CIO , Petitioner. Case No. 33-RC--609. March 13, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Sixteenth Region on
July 9, 1957, among the employees in the unit described in the stipu-
lation. At the conclusion of the election, a tally of ballots was fur-
nished the parties. The tally shows that of the 40 eligible voters, 39
cast valid ballots, of which 20 voted for and 19 against the participat-
ing labor organization.
120 NLRB No. 14.