Otis Elevator Co.

National Labor Relations Board - Board Decisions

Dec 23, 1955

114 N.L.R.B. 1490 (N.L.R.B. 1955)

1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence lists are entitled to vote who have indicated prior to issuance
ol" this decision that they are interested in returning to work in re-
-spanse to the Employer's current yearly inquiry as to their in-
tentions.'
We find that the following employees constitute a unit appropriate
-for the purposes of collective bargaining within the meaning ofTSec-
-tion 9 (b) of the Act :
All production and maintenance employees at the Employer's Ellen-
-ville and Pine Bush, New York, plants including shipping employees,
-plant clerical employees, section leaders, truckdrivers, and cafeteria
employees, but excluding office clerical employees, professional em-
ployees, technical employees, cost analysts, guards, subforemen, and
all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 The foregoing finding of eligibihty is, however , subject to the individual employee's
appearance and voting in the manual election directed herein . See Red Owl Stores, Inc.,
114 NLRB 176; Hagen Manufacturing Company, Inc., 100 NLRB 1321, 1322.
Otis Elevator Company and International Union, United Auto-
mobile, Aircraft, Agricultural Implement Workers of America,
UAW-CIO & Its Affiliated Local 770, Petitioner . Case No.
2-RC-7536. December 23,1955
DECISION AND CERTIFICATION OF REPRESENTATIVES
On June 29, 1955, 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 Second
Region among the employees in the agreed appropriate unit. Follow-
ing the election, the Regional Director served on the parties a tally
of ballots which showed that of approximately 260 eligible voters, 235
cast valid ballots, of which 126 were cast for the Petitioner and 109
were cast against the Petitioner. Six ballots were challenged and
one was void. The challenged ballots were not sufficient in number
to affect the results of the election.
On July 7, 1955, the Employer timely filed objections to conduct
affecting the results of the election alleging, in substance, that the
Petitioner interfered with the free choice of a bargaining representa-
tive (1) by distributing circulars among the employees containing mis-
representations and (2) by intimidating and threatening employees.
In accordance with the Rules and Regulations of the Board, the Re-
gional Director conducted an investigation, and on August 30, 1955,
114 NLRB No. 234.
OTIS ELEVATOR COMPANY 1491
issued and duly served on the parties his report on objections in which
,he recommended that the objections be overruled, and that the Board
certify the Petitioner as the bargaining agent of the employees in
the appropriate unit. Thereafter, the Employer timely filed its ex-
ceptions to the Regional Director's report on objections and a support-
ing memorandum, and the Petitioner filed an answer to the Employer's
exceptions.
The Board has reviewed the stipulation of the parties, the objections,
the Regional Director's report on objections, the Employer' s excep-
tions, the Petitioner's answer thereto, and upon the entire record in
the case, makes the following findings of fact :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. As stipulated by the parties, the following employees of the Em-
ployer constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act: All hourly
rated production and maintenance employees employed at the Em-
ployer's electronic division located at 35 Ryerson Street, Brooklyn,
New York, excluding all office clerical employees, professional em-
ployees, guards, watchmen, and all supervisors as defined in the Act.
5. For the reasons set forth below we adopt the Regional Director's
recommendations that the objections be overruled and the Petitioner
certified.
In the first instance, the Employer alleges that shortly before the
election of June 29, 1955, the Petitioner circulated false election propa-
ganda among its employees. The Regional Director's report shows
that on June 24 and 28, 1955, the Petitioner distributed circulars 1 con-
taining information concerning wage rates and job classifications at
other plants of the Employer and of another nearby employer.2 The
circulars, in effect, also advised the employees to make their own com-
parisons. Substantially all the information in the circulars was ac-
curate. However, the Petitioner cited a few inaccurate wages rates,
relied on some P.oncomparable job classifications and erroneously stated
I The Employer also cited as objectionable certain alleged misrepresentations contained
in the Petitioner 's April 22, 1955, circular . As this circular was distributed prior to the
stipulation for certification upon consent election executed by the parties on June 2, 1955,
the Board will not consider it as a basis for setting the election aside. F. W. Woolworth
Company, 109 NLRB 1446, 1449.
2 The Petitioner admits that it had bargaining contracts at these other plants and
presumably was familiar with the terms and conditions of employment in effect there.
387644-56-vol. 114-95 .
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Employer's employees had to pay for hospitalization. The
Employer, in effect, contends that such inaccuracies exceeded the
bounds of legitimate propaganda and that, under the principle
enunciated in the Gummed Products case,' the election herein should
be set aside. We do not agree.
In the Gummed Products case, the union made false statements of
fact as to wages under a nonexistent new contract and thereafter de-
liberately repeated them on the eve of the election in the face of a
-direct contradiction by the Employer. The Board set-the election
aside because the union's conduct "exceeded the limits of legitimate
propaganda and lowered the standards to a level which impaired the
free and untrammeled expression of choice by the employees." We
agree with the Regional Director that the Petitioner's conduct in the
"instant case is substantially different from the willful misrepresenta-
tions present in the Gummed Products case. AS indicated above,
virtually all the information in the circulars was accurate. To the
extent that some inaccuracies did exist as to wage rates, they appear
to have been inadvertent. As to job classifications at the other plants
which were not comparable with the Employer 's, the Petitioner made
no claim to know the job descriptions and classifications at the Em-
ployer's plant. In any event, the Petitioner asked the employees to
make their own comparisons with the information supplied. Al-
though the statement that the employees had to pay for their own
hospitalization was not true, it dealt with information which was
within the employees' own knowledge and which they themselves
could properly evaluate. Finally, we note that, unlike the Gummed
Products case, the Petitioner did not repeat any inaccuracies in the
face of a contradiction by the Employer. In these circumstances,
while we do not condone inaccuracies, we do not believe that the ability
of the employees to evaluate the Petitioner's propaganda was so im-
paired as to prevent their uncoerced desires from being determined in
the election 4 Accordingly, we adopt the Regional Director's recom-
mendation and overrule the objection.
Secondly, the Employer objects to the election on the ground that
the Petitioner intimidated and threatened employees. It alleges that
the Petitioner's organizers constantly threatened employee Vessia with
the loss of her job if she did not cooperate and do as they directed.
The Regional Director's report, based upon the statement of the em-
ployee herself, does not support this objection. Vessia denied that
the Petitioner threatened to have her laid off or fired. According to
Vessia, a member of the organizing committee told her that, if the
Petitioner did not win the election, the Employer would lay her off,
s Gummed Products Company, 112 NLRB 1092.
* See Horder's Incorporated, 114 NLRB 751; Merck & Company, Inc., 104 NLRB
891, 892.
OTIS ELEVATOR COMPANY 1493
and that, to save her job, she should continue to assist the Petitioner.
Thus, it appears that what Vessia was told did not constitute a threat
of a reprisal which it was within the power of the Petitioner to take
thus preventing the employee from exercising. a free choice in the
election.' At most, it constituted an accusation against the Employer
in the nature of campaign propaganda which the employee was capa-
ble of evaluating in choosing, a bargaining, representative. Accord-
ingly, we overrule the objection.
The Employer further alleges that the Petitioner interfered with
the election by offering the employees a reduction in the initiation fees
of $15 to $20 if they joined up before the election. The practice of
offering special reduced initiation fees during an organizational cam-
paign has been traditionally used by unions to attract new members.
The Board has held that such a practice during a preelection cam-
paign does not in and of itself interfere with the conduct of an elec-
tion.6 In the instant case, it appears that the Petitioner by its alleged
statement was merely attempting to gain members before the election.
Its offer of lower initiation fees to employees who signed up before the
election was equally applicable to all employees, and was in no way
contingent on how the employees voted in the election or on the results
of the election. Absent a showing that the employees would be re-
warded or penalized because they voted for or against the Petitioner,
the statement allegedly made by the Petitioner would not warrant
setting aside the election.' Accordingly, we find that the Employer's
objection is without merit and overrule it.
As we have overruled the objections to the election, and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast, we shall certify the Petitioner as the collective-bargaining
representative of the employees in the appropriate unit.
[The Board certified International Union, United Automobile, Air-
craft, Agricultural Implement Workers of America, UAW-AFL-
CIO 9 & Its Affiliated Local 770 as the designated collective-bargain-
ing representative of employees of the Employer in the unit heretofore
found appropriate.]
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Certification of Representatives.
5 Kresge-Newark, Inc., 112 NLRB 869. -
e The Gruen Watch Company, 108 NLRB 610, 612 ; J. J. Newberry Company, 100
NLRB 84, 86-87.
4 The Gruen Watch Company, supra.
s In view of our determination herein, we need not resolve the question of whether the
offer of reduced fees occurred before or after the election.
9 The AFL and CIO having merged, we are amending the identification of the Union's
affiliation.