Thiem Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1972

195 N.L.R.B. 1128 (N.L.R.B. 1972)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thiem Industries , Inc. and International Association
of Machinists and Aerospace Workers, AFL-CIO,
Petitioner . Case 31-RC-1799
March 30, 1972
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election an election by secret ballot was con-
ducted on August 26, 1971, under the direction and
supervision of the Regional Director for Region 31
among the employees in the appropriate unit. At the
conclusion of the election the parties were furnished a
tally of ballots which showed that of approximately 158
eligible voters, 142 cast-ballots of which 79 were for and
62 were against the Petitioner, with 1 void ballot and
no challenged ballots. Thereafter, the Employer filed
objections to conduct affecting the results of the elec-
tion.
In accordance with the Rules and Regulations of the
National Labor Relations Board, the Regional Direc-
tor conducted an investigation of the objections and, on
October 5, 1971, the Regional Director issued and duly
served on the parties his Report on Objections in which
he recommended that the objections be overruled and
the Petitioner be certified as the collective-bargaining
representative of the employees involved. Thereafter,
the Employer filed timely exceptions to the Regional
Director's report, and a supporting brief. The Regional
Director considered these exceptions as a motion for
reconsideration, and on November 5, 1971, issued a
Supplemental Report on Objections, wherein he again
recommended that the objections be overruled and the
Petitioner be certified as the collective-bargaining rep-
resentative of the employees. Thereafter, the Employer
filed timely exceptions to the Regional Director's sup-
plemental report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the policies of
the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. We find, in accord with the stipulation of the
parties, that the following unit is appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of the
Employer at its plant in Torrance, California; ex-
cluding all office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional Director's
report and the supplemental report and the entire
record in this case, including the exceptions and briefs,
and hereby adopts the Regional Director's findings and
recommendations as herein modified.
On August 24 and 25, 1971, the employees of the
Employer received two documents from the Petitioner.
The first of these was an attempt by the Petitioner to
explain to the employees about the wage and price
freeze that the President of the United States had an-
nounced on August 15, 1971, and contained the follow-
ing statement deemed objectionable by the Employer:
2. We believe that we can prove a wage inequity
in a newly organized shop before the Emergency
Preparedness Board (national statistics prove that
non-union shops are on the average of $1.16 per
hour behind Union shops.)
The second of the two documents from the Petitioner
informed the employees that recent settlements of labor
agreements " . . . went to wit for Union members," and
quoted the percent of wage increases which had been
obtained in the rail, steel, auto, trucking, can, and air-
line industries. Under these quotations appeared the
following statement:
The above represents only a fraction of the mem-
bers represented by the International Association
of Machinists and Aerospace Workers-but it is
the biggest reason the management wants you to
vote No.
The Employer objected that because of this language
in the two documents of the Petitioner, which the Peti-
tioner knew were misrepresentations, the election
should be overturned. The Employer also alleged that
the first of the documents was not brought to its atten-
tion until the day before the election, August 25, and
that the second document did not come to its attention
until the day of the election, August 26, and therefore
it had insufficient time to reply to them.
The Regional Director found that the Employer had
sufficient opportunity to reply to the first of the docu-
ments sent out by the Petitioner. He also found that the
Employer had failed to come forth with evidence that
the statements made by the Petitioner in this first docu-
ment were false, and that, therefore, they could not be
found to be misrepresentations. We agree with this
finding.
195 NLRB No. 200
THIEM INDUSTRIES , INC. 1129
In a letter answering the Employer 's objections, the
Petitioner stated that it believed that its statement that
nonunion shops are on the average $1 . 16 per hour be-
hind union shops was true , based on information pub-
lished in the BLS Monthly Labor Review for May
1971, as quoted in the BNA Union Labor Report
Weekly Newsletter of May 20 , 1971. Although the arti-
cle does not substantiate the statement made by the
Petitioner in its document to the employees , neither
does it show the statement to be false . Thus Petitioner
can be found only to have made an unsubstantiated
claim of an alleged variance between wages in union
and nonunion shops . This is not, in our view , a misrep-
resentation.
Regarding the objection to Petitioner 's second docu-
ment, the Petitioner , in the same letter of September 8,
informed the Regional Director that the purpose of the
statements made in that document was not to give the
employees the impression that it had gained the benefits
listed for the six named industries , but rather that the
employees in these industries enjoyed these benefits be-
cause they were members of a union . Further , the Peti-
tioner stated in its September 8 letter that it did "repre-
sent large groups of employees in four of the six
industries , set forth and was a material factor in nego-
tiating the benefits listed ." Petitioner also contended
that the statement following the quotation of the be-
nefits in the six industries , which said that the workers
in those industries represented only a fraction of the
members represented by the Petitioner , merely indi-
cates the scope and size of Petitioner Union.
This second document is capable of a construction
that Petitioner was responsible for getting the quoted
wage increases for the workers listed , which is a consid-
erable exaggeration of the facts . But we do not believe
that such propaganda , despite its overstatement of Peti-
tioner's importance and effectiveness , is that kind of
serious misrepresentation about existing campaign is-
sues which would unduly influence the employees in
making their choice at the polls. Moreover , it is a mat-
ter of fairly common knowledge that Petitioner is not
the exclusive , or even predominant , employee repre-
sentative in such industries as basic steel and automo-
bile fabrication . Thus, the matters asserted were of a
nature which the employees could be expected to assess
with some accuracy . On balance , we are of the view
that the document in question was not likely to have
had sufficient impact on voter freedom of choice to
warrant our setting the election aside . We therefore
overrule this objection. Accordingly , we shall adopt the
Regional Director 's recommendation , and we hereby
overrule the Employer's objections.
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 votes cast, we shall
certify the Petitioner as the collective-bargaining repre-
sentative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for the International Association
of Machinists and Aerospace Workers, AFL-CIO, and
that, pursuant to Section 9(a) of the National Labor
Relations Act, as amended , the said labor organization
is the exclusive representative of all the employees in
the unit found appropriate herein for purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment.