The Cross Co.

National Labor Relations Board - Board Decisions

Jun 4, 1959

123 N.L.R.B. 1503 (N.L.R.B. 1959)

THE CROSS COMPANY 1503
Petitioner's contention at the hearing, we find, in agreement with the
Intervenor, that the technique of pooling votes is inappropriate in a
situation such as this where it is sought to add a previously unrepre-
sented group to an existing unit 5
If the Intervenor wins in group 1, or if the Petitioner wins in
group 1 or 2 alone, then the employees in group 1 or 2, as the case
may be, will be taken to have indicated their desire to constitute a
separate unit, and the Regional Director conducting the elections
directed herein is instructed to issue a certification of representatives
to the bargaining agent so selected for such separate unit or units,
which the Board, in the circumstances, finds to be appropriate for
purposes of collective bargaining.
If, however, the Petitioner wins the elections in both groups, the
employees in these groups will be taken to have indicated their desire
to constitute a single combined unit, and the Regional Director is in-
structed to issue a certification of representatives to the Petitioner for
such combined unit, which the Board, in the circumstances, finds to
be appropriate.
5. The Employer contends that no election should be conducted
among terminal employees in Miami, St. Petersburg, and Pensacola
because it plans to subcontract operations at these terminals and the
status of these employees is therefore transitory. The record shows
that the Employer's plans in this respect are dependent upon its ob-
taining satisfactory new terminal facilities and operating arrange-
ments, which is at present uncertain. Moreover, the requested ticket
and express agents and porters are currently employed by the Em-
ployer, and a substantial and representative number will continue to
be employed for an indefinite period in the future. We therefore
perceive no reason to deprive them of an opportunity to select a
collective-bargaining representative at this time.6
[Text of Direction of Elections omitted from publication.]
G Adams Coal Company, Inc., 118 NLRB 1493, footnote 3
9 See General Electric Company, 101 NLRB 1341, 1344.
The Cross Company and Chris . M. Youngjohn , Agent and Attor-
ney, Petitioner and International Union , United Automobile,
Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, Local 155. Cases Nos. 7-RD-272 and 7-RD-275.
June 4, 1959
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on November 12, 1958,
123 NLRB No. 168
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the direction and the supervision of the Regional Director for
the Seventh Region, among the employees in the appropriate unit.
Following the election, the Regional Director served upon the parties
a tally of ballots which showed that of approximately 296 eligible
voters, 150 cast valid ballots for, and 134 cast valid ballots against,
the Union. There were five challenged ballots.
On November 17,1958, the Petitioner and the Employer filed timely
objections to the election. In accordance with the Board's Rules and
Regulations, the Regional Director conducted an investigation and
on March 16, 1959, issued and duly served upon the parties his report
on objections, in which he recommended that the objections be over-
ruled and that the Union be certified as the bargaining representative
of the employees in the appropriate unit. Both the Petitioner and
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 Rodgers avid
Jenkins].
The Board has reviewed the stipulation of the parties, the objec-
tions, the Regional Director's report on objections, and the Peti-
tioner's and the Employer's exceptions. Upon the entire record in
this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization here involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees, including truckdrivers,
leaders, timekeepers, and shipping and receiving employees employed
by the Employer at 17801 East 14 Mile Road, Fraser, Michigan, but
excluding office clerical employees, draftsmen, engineers, designers,
professional employees, expediters, servicemen, guards, and super-
visors as defined by the Act.
5. In their objections both the Petitioner and the Employer con-
tend that the Union exceeded the bounds of legitimate campaign
propaganda by making certain false statements on the day of the
election which neither party had an opportunity to refute. The
Petitioner also objected to certain activities of the Union during the
polling period, which it alleges interfered with the proper conduct
of the election.
THE CROSS COMPANY 1505
The Regional Director 's investigation revealed that on the day of
the election the Union circulated a handbill to employees in the above
voting group which contained , inter alia , the following statements :
REMEMBER 1949?
That was when the Cross Company laid off over 100 workers-
and recalled only three of them !
Cross says that if the union is decertified it will respect seniority
and all other rights won by the union. That's not true. Right
now-in 1958-engineers are being laid off out of seniority!
Guard your rights, vote "yes" to retain the UAW.
DON'T LET IT HAPPEN IN '58!
The best insurance you have is your membership in the UAW
and the protection of a contract . Don't let the company talk you
into throwing away these rights for vague promises that can be
broken at any time.
Here's a sample of your benefits under the UAW contract :
Under the company SUB plan, a typical payment was the $8.29
received by a foreman recently . Compare this with $1,156 col-
lected by one man under the union severance plan after 11 years
at Cross.
The investigation further disclosed that the Union's reference to
the 1949 layoff was unfounded and had little relationship to the true
facts. The layoff in 1949 involved 29 employees , of whom 8 were
recalled in 1949 and 18 at various times thereafter . Only eight, how-
ever, availed themselves of the recall privileges. In 1949, the Union
was not the bargaining agent for the employees in the above unit
and most of the employees currently working were not employed by
the Employer at that time. The Regional Director also found that
the Union first circulated a statement concerning the 1949 layoff
around the middle of September 1958 in a leaflet mailed to employees
and distributed to some employees at the plant. The Employer in a
letter distributed to its employees around October 30, 1958, also dis-
cussed the subject of seniority and job security , but made no reference
to the Union's propaganda. In a circular distributed to employees
around the first week in November 1958, the "Decertification Com-
mittee," which was opposing the Union, discussed job security and
made reference to the Union's propaganda regarding layoffs. Al-
though the circular did not specifically challenge the accuracy of the
Union's assertion concerning the 1949 layoffs , it was calculated to
neutralize whatever appeal it might have had on the question of better
job security through the Union by pointing out that during the
Union's incumbency for the past year there had been 250 layoffs and
150 had not as yet been recalled.
508'889-60-vol . 123-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the comparison made between the Employer's SUB plan and
the Union's severance plan, the Employer's records showed that the
average payment under its plan was approximately $200 and the
payment referred to in the Union's pamphlet was atypical. The
Regional Director concluded that the information concerning the 1949
layoff was not within the special knowledge of the Union and that
the employees themselves were capable of evaluating its truth or
falsity so that there was no requirement for the objecting parties to
be given an opportunity to answer the pamphlet. He also concluded
that the statement regarding the SUB and the Union's severance
plan was at worse an exaggeration and, like the 1949 layoff allega-
tion, was not so misleading as to exceed the bounds of election cam-
paigning. Similarly, he found no merit in the Petitioner's objections
regarding the Union's conduct during the election. Accordingly, the
Regional Director recommended that the objections be overruled.
The Board has numerous times stated that mere falsity does not
alone constitute campaign trickery which warrants setting aside an
election. It is only when one of the parties deliberately misstates
material facts which are within its special knowledge and where the
employees are unable properly to evaluate the misstatement, that the
Board will set aside the election.' Applying these principles to the in-
stant case it is clear that the misstatement regarding the 1949 layoff
was not within the special knowledge of the Union. Indeed, it is not
unlikely that the employees had as much information as the Union
with respect to the Employer's seniority and recall policies. Al-
though neither of the objecting parties answered the Union's mis-
statements before the election, it appears that both circulated state-
ments regarding seniority and job security prior to the day of the
instant election. The employees thus had full opportunity to discuss
and seek more information on the issues raised by the Union and those
who were employed in 1949 were in a position to know and dissemi-
nate the true facts. In agreement with the Regional Director we
find, therefore, that the employees were themselves capable of making
a proper evaluation of the Union's misstatements regarding the Em-
ployer's recall and seniority policy.' Similarly, we agree with the
Regional Director that its statement comparing the Employer's SUB
plan and the Union's severance plan was at most an exaggeration and
I See, e.g., Barber Colman Company. 116 NLRB 24, 26-27; Wheelerwveld Division, C. H.
Wheeler Manufacturing Company, 118 NLRB 698, 701, 702 ; Celanese Corporation of
America, 121 NLRB 303.
2 See General Electric Co., 119 NLRB 944, 945-946. The Petitioner in its exceptions
presented several affidavits from employees in the voting unit who testified that they were
influenced by the Union's misstatements and would have voted differently if :they had
known the true facts. We find that these statements do not raise material issues. It is
well established that postelection statements regarding intent or change in mind cannot
be used as basis for upsetting an election which has been otherwise fairly conducted. See
Necco Sales Corporation, 119 NLRB 155, 156.
LOCAL 611, INT'L CHEMICAL WORKERS UNION, AFL-CIO 1507
not so misleading as to justify setting aside the election 3 As to the
contentions of the parties that they had no opportunity to answer the
Union's misstatements, the Board has frequently held that the Em-
ployer does not have to have a last opportunity to reply to union
propaganda as a matter of right.4
Having found the Employer's and the Petitioner's objections to be
without merit,-' and as the Union has received a majority of the valid
ballots cast in the election, we shall certify it as the collective-
bargaining representative of the employees in the appropriate unit.
[The Board certified International Union, United Automobile, Air-
craft. and Agricultural Implement Workers of America, AFL-CIO,
Local 155, as the designated collective-bargaining representative of
the employees in the unit herein found appropriate.]
3 See Horder's, Incorporated, 114 NLRB 751, 753.
4 Celanese Corporation of America, supra. Moreover, as indicated above, it appears
that prior to the election the Petitioner had knowledge of the Union's statements con-
cerning the 1949 layoff, and had ample opportunity to answer them.
5 The Petitioner's exceptions raise no material issue of fact concerning the Regional
Director's recommendation that its objection relating to the conduct of the Union during
the following period be overruled. We accordingly adopt his recommendation and over-
rule this objection. Similarly, we find no merit in the other objections for the reasons
stated by the Regional Director.
Local No. 611 , International Chemical Workers Union, AFL-
CIO; and International Chemical Workers Union , AFL-CIO
and Purex Corporation, Limited . Case No. 14-CB-649. June 5,
1959
DECISION AND ORDER
On January 19, 1959, Trial Examiner George A. I )owning issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent Local Union and the Respondent International Union filed ex-
ceptions and the latter filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications.
We agree with the Trial Examiner that on and after May 23, 1958,
the Respondent Unions refused to bargain with the Employer in vio-
123 NLRB No. 182.