The Trane Co.

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1506 (N.L.R.B. 1962)

1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted . Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(f) •Notify'the -Regional)Directorffor,th'hVourieenth Region,lin writing, within^20
days from the date of receipt of this Intermediate Report, what steps the Respond-
ent has taken to comply herewith.56
se In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain , upon request, with Local 520, International Union of Oper-
ating Engineers , AFL-CIO, as the exclusive representative of all employees in
the bargaining unit described below in respect to rates of pay, wages, hours of
employment , or other conditions of employment , and if and understanding is
reached , embody it in a signed agreement . The bargaining unit is:
All our employees , excluding office clericals, professional employees,
watchmen , guards, and supervisors as defined in the Act.
WE WILL NOT threaten that we will liquidate our operations rather than deal
with a union , or coercively interrogate our employees about their union activities
or those of other employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form, join, or
assist Local 520, International Union of Operating Engineers , AFL-CIO, or any
other labor organization , to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by the
provisos in Section 8(a)(3) of the Act.
WE WILL offer Paul Colvis immediate and full reinstatement to his former or
substantially equivalent position, and make him whole for any loss of pay suf-
fered by reason of the discrimination .against him.
All of our employees are free to become, remain , or refrain from becoming or
remaining members of Local 520, International Union of Operating Engineers, ,AFL-
,CIO, or any other labor organization.
SOUTHERN ILLINOIS SAND CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any, other material.
Employees may communicate directly with the Board's Regional Office, 4459
Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone Number, Main
1-100, Extension 2142, if they have any question concerning this notice or com-
pliance with its provisions.
The Trane Company ( Clarksville Manufacturing Division) and
International Association of Machinists , AFL-CIO, Petitioner.
Case No. 26-R,C-1605. July .19, 1962
DECISION AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on April.21, 1961, under the
137 NLRB No. 165.
THE TRANE CO. (CLARKSVILLE I%IANUFACTURING DIV.) 1507
direction and the supervision of the Regional Director for the Twenty-
sixth Region among the employees in the unit described below. Fol-
lowing the election, the Regional Director served upon the parties a
tally of ballots, which showed that of approximately 165 eligible
voters, 168 votes were cast, of which 79 were for, and 85 against, the
Petitioner, and 4 ballots were challenged. The Petitioner filed timely
objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, Series 8,
the Regional Director conducted an investigation, and thereafter is-
sued and served upon the parties his report on objections, in which
he found that the objections were without merit and recommended that
they be overruled. The Petitioner filed timely exceptions to the
Regional Director's report.
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 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 Sections
9(c) (1) and2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all production and
maintenance employees at the Employer's plant in Clarksville, Ten-
nessee, including working leaders, shipping and receiving employees,
storeroom. employees, toolroom employees, and janitors, but excluding
all office clerical employees, professional and technical employees, the
inspectors, salesmen, guards, and all supervisors as defined by the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. The Petitioner filed objections to the election, alleging, inter alia,
that:
1. The Company officials, on April 21, 1961, before and during
voting hours passed out envelopes containing a five ($5.00) dollar
bill along with employees' pay checks to each employee, and said
envelope had appearing on it completely false statements. The
Union had no opportunity or time whatever to reply to these
false statements.
* *
5. The Company officials also distributed other printed false
statements such as a "Dear Mom" letter, etc.
As to objection No. 1,1 the Regional Director reported that on the
day of the election, April 21, 1961, which was also a regular payday,
I Member Brown agrees with Chairman McCulloch and Member Panning in finding merit
in objection No 5, infra, and that a second election should be directed He finds it un-
necessary to reach, and therefore does not rule upon, the paycheck matter under objection
No. 1
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen distributed paychecks to employees from which $5 was de-
ducted, but the $5 was separately enclosed in a special envelope stapled
to the check upon which was printed the following :
THIS ENVELOPE CONTAINS $5.00 OF YOUR MONEY
This is the estimate amount the union would want to take out
of your pay check every month, and hand over
TO THEM !
The money in this envelope does not include fines, assessments.
and other charges that you may be forced to pay to the union.
VOTE TO KEEP THE MONEY YOU EARN
VOTE "NO"
The Petitioner contended that the inscription on the envelope was-
false in two respects : The Petitioner's monthly dues in the area where
the Employer's plant is located is $4 and not $5; and Tennessee is a
"right to work" State so that, contrary to the implication of the in-
scription, an employee cannot be required to join a union in order to
retain his job?
Notwithstanding the misrepresentations which he found above, the'
Regional Director recommended that the objection be overruled.' We-
do not agree.
In election proceedings, the Board tries to provide a "laboratory in
which an experiment may be conducted, under conditions as nearly
ideal as possible, to determine the uninhibited desires of the em-
ployees." 4 The Board recognizes that in an imperfect world this is
an ideal which may not literally be attainable. Accordingly, it has
held that "Exaggerations, inaccuracies, partial truths, namecalling,
and falsehoods, while not condoned, may be excused as legitimate
propaganda, provided they are not so misleading as to prevent the
exercise of a free choice by employees in the election of their bar-
gaining representative." 5 Where this type of propaganda is used
and excused the Board assumes that the individuals to whom it is
addressed will have sufficient sophistication and opportunity to eval-
uate it at its true worth. But where a party to the election indulges
2 Tennessee Code, chap . 36, Laws 1947 , provides:
SEC. 50-208. It shall be unlawful for any person , firm, corporation or association of
any kind to deny or attempt to deny employment to any person by reason of such
person's membership in, affiliation with , resignation from, or refusal to join or affiliate
with any labor union or employee organization of any kind
SEC. 50-210. It shall be unlawful for any person , firm, corporation or association of'
any kind to exclude from employment any person by reason of such person 's payment
of or failure to pay dues, fees , assessments , or other charges to any labor or em-
ployee organization of any kind.
$ In support of his recommendation the Regional Director cited Montrose Sanger Com-
pany, 120 NLRB 88 ; The Gummed Products Company, 112 NLRB 1092 ; and The Mosier
Safe Company, 129 NLRB 747.
• General Shoe Corporation , 77 NLRB 124, 127.
s The Gummed Products Company, 112 NLRB 1092 , 1093-1094.
THE TRANE CO. (CLARKSVILLE MANUFACTURING DIV.) 1509
in material misrepresentations, particularly on the eve of the election,
which it cannot be expected that employees will be able to recognize
.as such, then the permissive bounds of propaganda have been ex-
'ceeded, and the election held in such circumstances cannot be said to
reflect the free choice of employees in the selection of a bargaining
representative.6 There is no rule against the distribution of written
propaganda material to employees during the 24 hours preceding the
=election, as there is against the making of speeches on company time
to massed assemblies of employees during this period.7 Nevertheless,
because there seems to be an increasing tendency for parties to an
-election deliberately to time the distribution of propaganda literature
making new and powerful points so close to the election that the other
parties will be unable to make effective answer, the Board believes
that it should examine such literature with special care to prevent
victimization of employees. '
The Employer had ample opportunity to inform employees of the
requirements and cost of joining and remaining members of the Peti-
tioner. This is legitimate propaganda. If the Employer had pub-
licized these facts in the form used several days before the election,
the Petitioner could have correctly pointed out to employees that its
dues - obligation was $4 and not $5 per month, and that under the
Tennessee law, no employee could be required to join a union or pay
dues in order to retain his employment, even if the Petitioner were
selected as bargaining representative. These are very important mat-
ters to employees. Obviously, the Employer was fully aware of their
importance as evidenced by the form and timing of its propaganda
thrust. We do not believe that employees were in a position correctly
to have evaluated Employer's misstatements. We hold that, regard-
less of whether the misstatements were willful or inadvertent, their
inclusion in propaganda material distributed to employees by super-
visors immediately before the election seriously impeded a determina-
tion of the employees' choice of a collective-bargaining representa-
tive. Accordingly, we hereby sustain Petitioner's objection No. 1.
We also find merit in objection No. 5. Before the election, the
Employer distributed to employees a series of letters, copies of which
are attached to the Regional Director's report, the burden of which was
that it was futile to select the Petitioner as bargaining representative.
Thus, in its April 15, 1961, letter, after reviewing all the benefits
voluntarily accorded employees, the Employer concluded :
The Company is continually reviewing the benefit program in
effect at Clarksville now. This has been our policy, and will con-
tinue to be our policy . . . union or no union. What, then, can
6 Ibid
7 Peerless Plywood Company , 107 NLRB 427, 429.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union organizers offer you but more promises . . and a
chance to pay dues for benefits you'll receive anyway? -
In its April 18 letter to employees, after stating that its wage policy
is to pay wages equal to or better than the average paid by other
similar firms in the area, the Employer emphasized that "This is and
will continue to be our wage policy-union or no union." Further,
after reciting wage increases voluntarily given employees, the para-
graph added, "No union is necessary for this-and NO UNION CAN
GET YOU ANY MORE THAN THIS!" Finally, in the closing
paragraph of this letter, referring to the benefits above described, the
letter concluded :
You have gotten this without having a union-without having to
pay dues-and without the loss of pay through costly "strikes."
What, then, can a union offer you?
A day later, on April 19, the Employer sent employees another
letter which said :
The Company has shown you where Trane people stand on
wages. Our policy calls for a detailed survey of wage rates of
our type of firms in the area each spring. This is done so that we
can adjust wages, if necessary, to maintain a favorable position
compared to the other companies involved. You know from
past experience that we have adjusted wage rates when we have
found it reasonable to do ^so. We have done this without a union.
We suggest that you can judge the future by the past.
A union would cost you money for dues and special assessments
and fines; it would endanger your jobs through strikes; it would
get you nothing other than what the Company agrees to grant
based on what is fair and what is called for by the facts of the
situation.
Thus, the letters to employees conveyed the message that the Em-
ployer had a unilaterally established wage and employee benefit policy,
that benefits had been accorded in the past and would be accorded in
the future on the basis of this policy without the intervention of a
union, that the policy would not be changed even if a union were
selected to represent the employees, and therefore that the selection
of such a representative was an unnecessary expense and futile. Such
an attitude is not only inconsistent with good-faith bargaining,' it is
also reasonably calculated to have a coercive effect upon employees
who, no more than the generality of maniknd, are inclined to indulge
in futile acts. There is no more effective way to dissuade employees
from voting for a collective-bargaining representative than to tell
them that their votes for such a representative will avail them nothing.
S N.L.R B v. Highland Park Manufacturing Company , 110 F 2d 631 (C A. 4).
THE TRANE CO. (CLARKSVILLE MANUFACTURING DIV.) 1511
Accordingly, contrary to the recommendation of the Regional Direc-
tor, we find that by the foregoing conduct the Employer created an
atmosphere which made impossible a free choice in the selection of
a bargaining representative.
As we have found that the election was held under circumstances
which made a free election impossible, we shall set it aside and direct
a 'second, election at a time deemed appropriate by the Regional
Director.
[Th&Board set aside the election held on April 21,1961.]
[Text of Direction of Second Election omitted from publication."]
MEMBERS RODGERS and LEEDOM, dissenting :
For the reasons set forth below, we would adopt the Regional Direc-
tor's conclusion that the Petitioner's objections raise no material and
substantial issues affecting the results of the election.
In the first place, we disagree with the determination of Chairman
McCulloch and Member Fanning that the Employer interfered with
the free choice of its employees by virtue of the printed statement it
distributed to employees with their paychecks on the day of the elec-
tion. Our disagreement with our two colleagues rests upon two,
grounds: (1) Their interpretation and characterization of the facts
involved; and (2) their incomplete application of the Gummed Prod-
ucts rule to these facts.
It is uncontroverted that on the day of the election, April 21, 1961,
which was also a regular payday, foremen distributed paychecks to
employees from which $5 had been deducted. Employees, however,
received the $5 in a separate envelope stapled to the paycheck. On the
envelope the following was printed :
THIS ENVELOPE CONTAINS $5.00 OF YOUR MONEY
This is the estimated amount the union would want you to take
out of your pay check every month, and hand over
TO THEM !
O Under date of April 17, 1962, Sheet Metal Workers International filed a motion to
intervene. That organization had previously withdrawn from this proceeding prior to the
signing of the stipulation referred to in the text Under these circumstances Chairman
McCulloch and Member Fanning deny the motion to intervene Lufkin Foundry c
Machine Company, 83 NLRB 768 , 770 Members Rodgers and Leedom , who are dissenting
herein, join in the denial of this motion for purpose of making a majority on this issue.
In the opinion of Member Brown, however , the Lufkin Foundry case did not purport to
pass on the intervention issue involved here , it merely held that, after a consent-election
agreement has been signed , a labor organization may not intervene where its showing of
interest postdates the agreement . Because the Sheet Metal Workers obtained its show-
ing before the consent agreement was signed in this matter and in view of the consider-
able lapse of time since the original election was held, Member Brown would grant the
motion to intervene and permit the Sheet Metal Workers to appear on the ballot.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The money in this envelope does not include fines, assessments
and other charges that you may be forced to pay to the union
VOTE TO KEEP THE MONEY YOU EARN
VOTE "NO"
Chairman McCulloch and Member Fanning are finding that the dis-
tribution involved "material misrepresentations" as to dues and mem-
bership requirements which the employees were incapable of evaluat-
ing, and which the Petitioner had no opportunity to answer and
,,correct.
As for the so-called misrepresentations, we see none . We do not read
the language on the envelope as stating, either directly or impliedly,
that the employees would be compelled to join the Union and pay dues
in order to retain their jobs-the interpretation which the Petitioner
urges, and which Chairman McCulloch and Member Fanning seem
to be adopting. Clearly the language used by the Employer was sup-
'positive rather than declarative or injunctive. Thus, the words : "esti-
mated amount"; "would want"; "may be forced." We see nothing in
such words, or in the other words used, to warrant the conclusion that
employees were being told falsely that union membership would be-
-come compulsory. Consequently, the relevance of the Tennessee Code,
which is cited by our colleagues, to the actual facts before the Board
seems to us to be minimal at the most. Nor do we see any real signifi-
,,cance in the fact that the dues normally paid by members of the Peti-
tioner's organization in the area where the Employer is located are $4
a month rather than the $5 alluded to by the Employer. In this con-
nection, we note that the Employer specifically termed the $5 merely
an "estimated amount." In short, we find no misrepresentations; we
see nothing here that intelligent employees could not evaluate.10
10 The reliance of Chairman McCulloch and Member Fanning upon the rule of the
Gummed Products case, 112 NLRB 1092, appears to be in error . The Gummed Products
rule is applicable where a material misrepresentation has been made by a party with
specialized and authoritative knowledge of the true facts. The rationale of the rule is
'based on the idea that the existence of a party in the latter position lends credence to,
and impels belief in, the statements involved . See, e g, Gummed Products , supra, p.
1094 ; Thomas Gouzoule , Robert C. Lewis and Philip C. Efromson d/b/a The Calidyne
Company, 117 NLRB 1026, 1028 ; Kawneer Company, 119 NLRB 1460 , 1461 ; General
.Electric Company, 119 NLRB 944 , 947; Montrose Hanger Company, 120 NLRB 88, 90;
Kennametal , Inc, 121 NLRB 410, 412 ; The General Fireproofing Go, 123 NLRB 830,
-831; The Cleveland Trencher Company, 130 NLRB 600, 603; United States Gypsum
Company, 130 NLRB 901, 904.
But such a situation did not obtain here. Even were we to assume that the Employer
misrepresented the Petitioner's dues and fees structure, and also misrepresented that the
-employees would be compelled to Join the Petitioner's organization , it would seem mani-
fest that the employees would realize that the Employer was not the authoritative source
-in such matters . For it is not likely that the employees would accept the Employer's
-statements regarding the Petitioner 's dues at face value. Nor is it likely that the em-
ployees would accept, without more, a statement that they had to join the Union, in
view of the fact that the Tennessee right-to-work law had been publicly discussed and
debated throughout the State for approximately 15 years. See , in this connection, the
'following cases in which the Board held that misrepresentations , though made, were not
THE TRANE CO. (CLARKSVILLE MANUFACTURING DIV.) 1513
Finding as we do that the statement on the envelope was not a
material misrepresentation, the question of the timing of its dissemina-
tion becomes academic-unless it is to be argued that the Union was
entitled to the last word on every subject or contention advanced by
the Employer. We would note, however, in disagreement with Chair-
man McCulloch and Member Fanning, who appear to be suggesting
that the employees were not familiar with the Petitioner's dues re-
quirements, that the subject of dues was specifically raised in the
Employer's letters of April 6, 7, 11 (in which actual estimates of costs
were made), 15, 18, and 19. The election in question was held on
April 21,1961. Accordingly, we must respectfully point out that the
Petitioner in fact had ample time to publicize facts concerning the
subject of dues and assessments, and the employees, likewise, had
ample opportunity to verify or seek more information from the Peti-
tioner regarding these matters."
We also disagree with the conclusion of Chairman McCulloch and
Members Fanning and Brown that the series of preelection letters
written by Employer to its employees, the subject matter of Peti-
tioner's objection No. 5, had the effect of coercing the employees. In
so concluding our colleagues are finding that the letters in question.
conveyed to the employees the motion that the Employer "had a uni-
laterally established wage and benefit policy . . . and that the selec-
tion of a Union would be futile as good faith bargaining could not
result."
Our colleagues rely on the following passages which they have se-
lected from the Employer's letters of April 15, 18, and 19:
The Company is continually reviewing the benefit program in
effect at Clarksville now. This has been our policy, and will
continue to be our policy . . . union or no union. What, then,
can the union organizers offer you but more promises . . . and
a chance to pay dues for benefits you'll receive anyway? .. .
You have gotten this without a union-without having to pay-
dues-and without the loss of pay through costly "strikes." What
then can a union offer you?
a basis for overturning an election: The Baltimore Luggage Company , 123 NLRB 1289,
1290 ; Kennemetal, Ina, 119 NLRB 1236,1237-1238; R. H. Osbrink, d/b/a R. H. Osbrink-
Manufacturing Company, 114 NLRB 940, 942-943.
U See Comfort Slipper Corporation, 112 NLRB 1,83, 184-185; The Lundy Packing'
Company, 124 NLRB 905, 907-908.
Moreover, neither the rule of Peerless Plywood Company, 107 NLRB 427, nor the rule
of The Mosier Safe Company, 129 NLRB 747, which Chairman McCulloch and Member
Fanning cite with approval, prohibits last-minute propaganda. Furthermore, the Board'
has consistently held that parties to an election are not entitled to have the last oppor-
tunity to reply to propaganda as a matter of right. See Comfort Slipper Corporation,.
supra, at 184-185; Celanese Corporation of America, 121 NLRB 303, 307; Pinkerton's-
National Detective Agency, Inc., 124 NLRB 1076, 1077.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company has shown you where Trane people stand on
wages. Our policy calls for a detailed survey of wage rates of
our type of firms in the area each spring. This is done so that we
can adjust wages, if necessary, to maintain a favorable position
compared to the other companies involved. You know from past
experiences that we have adjusted wage rates when we have found
it reasonable to do so. We have done this without a union. We
suggest that you can judge the future by the past.
A union would cost you money for dues and special assessments
and fines; it would endanger your jobs through strikes; it would
get you nothing other than what the Company agrees to grant
based on what is fair and what is called for by the facts of the
situation.
The above passages are excised from a series of letters which cover
approximately 19 pages.12 These letters were distributed to the em-
ployees over a period of approximately 2 weeks. In our opinion the
excerpted passages speak for themselves, and are noncoercive. We
interpret these passages as merely an effort to show what the Em-
ployer's policy has been, and to assure its employees that regardless
of election results, the Employer does not contemplate a change in
its future industrial relationship policies. We can find in such state-
ments no threat to discontinue benefits if the Petitioner is selected,
Igor a promise to increase benefits if the Petitioner is rejected. Cer-
tainly, we cannot find, as do our colleagues, in the excerpts cited, or
in the letters in their entirety, a statement, either expressed or implied,
to the effect that the Employer would not engage in good-faith bar-
gaining, if the Petitioner were certified.13
We would, therefore, affirm the Regional Director's recommenda-
tion that the Petitioner's objections, including objections Nos. 1 and 5,
be overruled, and we would certify the results of the election.
12 The Employer 's letter of April 6 is devoted almost entirely to a quotation from a
-national magazine dealing with problems of unions and union organizing ; its letter of
April 7 discusses the list of companies where the Petitioner recently lost elections ; its
letter of April 11 deals exclusively with questions and answers regarding the Petitioner
and its practices ; its letter of April 15 summarizes the benefits its employees are now
receiving ; its letter of April 18 Is an attempt to answer allegations made by the Peti-
tioner as to alleged benefits of unionization ; and its letter of April 19 appears to be an
answer to the Petitioner 's propaganda , emphasizing the theme discussed in previous
letters that the Employer will continue its "fair" industrial relations policies.
In our view this series of letters is clearly propaganda , and clearly could be recog-
nized as such by the employees . We find no basis for our colleagues ' broad conclusion
that the Employer was in such letters indicating that it would not bargain in good faith
with a properly certified union.
13 See, e.g., Usuversal Producing Company, 123 NLRB 548; Esquire, Inc. (Coronet
.Instructional Films Division ), 107 NLRB 1238 ; National Furniture Manufacturing Com-
pany, Inc, 106 NLRB 1300. NL.R.B . v. Highland Park Manufacturing Company, 110
F. 2d 632 (,C.A. 4), cited by the majority (footnote 8, supra) Is not in point. That case
was concerned with a union which "had attained the right to represent " the employees
in question, and with an employer who had met and conferred with the union in ques-
tion. Here , we have a situation which can hardly be equated.