The Calidyne Co.

National Labor Relations Board - Board Decisions

Apr 5, 1957

117 N.L.R.B. 1026 (N.L.R.B. 1957)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 322 and Local 236 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By carrying out exclusive hiring arrangements or practices requiring clear-
ance from Local 322 as a condition of employment in its jurisdiction , the Re-
spondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) in the case of Respondent Local 322,
and within the meaning of Section 8 (a) (1) and (2) in the case of Respondent
Enterprise and Respondent White.
3. By carrying out an exclusive hiring arrangement or practice requiring clear-
ance from Local 236 as a condition of employment in its jurisdiction , Respondent
Enterprise has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) and (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Luzon
Anderson, thereby encouraging membership in a labor organization , Respondent
Enterprise and Respondent White have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Filippo
Palombi, thereby encouraging membership in a labor organization, Respondent
White has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) and (1) of the Act.
6. By causing Respondent White to discriminate against Luzon Anderson and
Filippo Palombi , in violation of Section 8 (a) (3) of the Act, Respondent Local
322 has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (2) and (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Thomas Gouzoule , Robert C. Lewis and Philip C. Efromson d/b/a
The Calidyne Company and International Union, United Auto-
mobile, Aircraft, Agricultural Implement Workers of America,
AFL-CIO, Petitioner . Case No. 1-I?C-44765. April 5, 1957
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On January 18, 1957, 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 First Region
among the employees in the agreed appropriate unit. Following the
election, the Regional Director served upon the parties a tally of
ballots which showed that of approximately 100 eligible voters, 99
cast ballots, of which 50 were for, and 49 were against, the Petitioner.
There were no challenged ballots.
On January 23, 1957, the Employer timely filed objections to con-
duct affecting the results of the election, alleging in substance that
within 24 hours of the election, the Petitioner distributed a flyer to the
employees which misrepresented the wages received by employees at
117 NLRB No. 145.
THE CALIDYNE COMPANY 1027
other plants represented by the Petitioner and thereby prevented the
exercise by employees of a free choice in the selection of a bargaining
representative. The Regional Director investigated the objections and
on February 28, 1957, issued and duly served upon the parties a report
on objections in which he recommended that the objections be over-
ruled. Thereafter, the Employer .timely filed exceptions to the
Regional Director's report and a supporting argument.
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 Rodgers and Bean].
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees 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. All production and maintenance employees at the Employer's
Winchester, Massachusetts, plant, including plant clerical employees,
but excluding executives, office clerical employees, professional em-
ployees, technical employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
5. According to the Regional Director's report, on the day before
the election which was held at 3 p. in. on January 18, 1957, the Peti-
tioner distributed a flyer to employees in which it listed job classifica-
tions and wage rates at the plant of Detroit Controls Corporation in
Norwood, Massachusetts, which it represents.' The flyer lists a single
rate for each job. According to the Regional Director's investigation,
the Detroit Controls collective-bargaining contract actually provides
for a rate range for each job, that is, a minimum and a maximum rate.
The flyer nowhere indicates this fact; the single rate quoted is actually
the maximum rate provided for in the contract.
The flyer also contains the following :
The following Sheet Metal rates are from the Electronics Di-
vision of the American Machine & Foundry Company, Boston,
Mass. [also represented by the Petitioner] :
Sheet Metal Layout Man_________________ $2.50 per hour
Sheet Metal Worker A__________________ $2.34 per hour
Sheet Metal Worker B__________________ $2.05 per hour
'The Regional Director does not state when the Employer became aware of the flyer
In its exceptions , the Employer says that it learned of the flyer only on the morning of the
election.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the date the flyer was circulated the actual contract rates for the
above three jobs were :
Sheet Metal Layout Man__________________________ $1.98-$2.28
Sheet Metal Worker A____________________________ $1.82-$2.12
Sheet Metal Worker B________________________ _ $1.69-$1.99-
The existing contract with American Machine also provided for a 6-
cent-an-hour increase beginning March 1, 1957. At the time the flyer
was distributed, American Machine and the Petitioner were negotiat-
ing adjustments in wage classifications pursuant to the contract. Amer-
can Machine had proposed upgrading each of the above classifications
by one grade, retroactive to February 27, 1956.1 However, the parties
did not reach agreement on all adjustments which were the subject
of negotiation until February 1, 1957, about 2 weeks after the distribu-
tion of the flyer, when the adjustments became effective as of Feb-
ruary 27,1956. Thus, the flyer misrepresented the rates for sheet metal
work paid by American Machine in two respects. It gave a single rate
for each job and that the maximum, whereas the contract rate provides
for a minimum and a maximum; and the maximum rate reported was
not then in effect, but would become effective on March 1, 1957, if
the Petitioner in the meantime were to accept the proposed job reclassi-
fications then under negotiations with American Machine, which did
not occur until February 1, 1957.
As a general rule, in the absence of coercion, the Board will not un-
dertake to police or censor the propaganda material used by the par-
ticipants in a Board election.' The Board leaves it to the opposing
party to correct and to the employees themselves to evaluate the distor-
tions, untruths, and half-truths which frequently accompany election
campaigns. However, when one of the parties deliberately misstates
material facts which are within its special knowledge, under such cir-
cumstances that the other party cannot learn about them in time to
point out the errors to employees and the latter do not have independent
knowledge which will enable them properly to evaluate the misstate-
ments, the Board will set aside the election upon the ground that it
does not reflect the free desires of the employees.' In the present case,
the Petitioner misrepresented to employees the rates of pay it had
obtained for employees at two other companies in the New England
area. It did this by conveying the impression that all employees in a
8 The upgrading provided the following wage scale :
Sheet Metal Layout Man------------------------------------------ $214-$2.44
Sheet Metal Worker A-------------------------------------------- $ 1.98-$2.28
Sheet Metal Worker B-------------------------------------------- $ 1.82-$2.12
3 Merck & Company, Inc., 104 NLRB 891, 892
4 See Alhs-Chalmers Manufacturing Co , 117 NLRB 744; Reiss Associates , Inc., 116
NLRB 217; The Gummed Products Company, 112 NLRB 1092.
CORNELL-DUBILIER ELECTRIC CORPORATION 1029
given job classification received a single rate, whereas the contracts
actually provided minimum and maximum rates for each job classi-
fication, and by misrepresenting the current rates at the American
Machine & Foundry Company. This information was distributed to
employees in the form of a flyer on the eve of the election, too late for
the Employer to check the information therein contained and commu-
nicate the correct facts to the employees. Further, the employees them-
selves had no independent means of knowing that the figures quoted
were misleading. In view of the importance to employees of wage rates
as an argument for or against unionization, we find that the election
of January 18, 1957, was not held under such circumstances as were
calculated to reflect the free choice of employees. We shall, therefore,
set it aside and direct a new election.
[The Board set aside the election held herein on January 18, 1057.]
[Text of Direction of Second Election omitted from publication.]
Cornell-Dubilier Electric Corporation and International Brother-
hood of Electrical Workers, AFL-CIO, Petitioner. Case No.
11-RC-850. April 5, .1957
SECOND SUPPLEMENTAL DECISION AND CERTIFI-
CATION OF RESULTS OF ELECTION
On February 12, 1957, the Board issued its Supplemental Decision
and Direction 'in this proceeding, in which it directed that six chal-
lenged but valid ballots be counted. It deferred ruling on the Peti-
tioner's objections to conduct affecting the results of the election
held July 20, 1956, stating that it would consider them only if, after
counting the 6 ballots, it appeared that the 10 ballots involved in
objections Nos. 1, 2, and 8 could affect the ultimate election results.a
The resulting supplemental tally of ballots shows that the Petitioner
lost the election 528 votes to 537, or by 9 votes. Consequently, the 10
ballots involved in the objections can affect the election results, but
only if all 3 objections have merit.
1117 NLRB 359.
9 Following the service of the revised tally , the Petitioner filed with the Petitioner filed
with the Board a "Petition for Completion of Proceedings " in which it asserts that its
objections run not to the particular employees involved in the alleged irregularities, but
rather to the conduct itself which rendered impossible , it contends , a free election. It thus
argues that the election should be set aside irrespective of the number of votes involved.
The Board rejected such conclusion in its supplemental Decision in this proceeding , and the
Petitioner has not advanced in its motion any new matter or argument warranting our now
reaching a different conclusion.
117 NLRB No. 143.