Tri-Ex Tower Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 680 (N.L.R.B. 1976)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-Ex Tower Corporation and Shopmen 's Local
Union No 624 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, Petitioner. Case 20-RC-12777
June 10, 1976
DECISION ON REVIEW AND
CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 3, 1975, the Regional Director for
Region 20 issued a Supplemental Decision and Di-
rection of Second Election in the above-entitled pro-
ceeding in which she sustained Petitioner's objections
to conduct affecting the results of the election, and
directed that a second election be conducted 1 There-
after, pursuant to the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Regional Director's Supplemental Decision on the
grounds, inter alga, that she departed from officially
reported Board precedent
By telegraphic order dated September 29, 1975, the
National Labor Relations Board granted the request
for review and stayed the second election pending
decision on review
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
The Board has considered the entire record 2 in
this case with respect to the issue under review and
makes the following findings
Petitioner's objections concern a letter mailed by
the Employer and received by the employees on the
evening before the election concerning a strike which
had occurred at another plant in the area The letter
states in part
We conducted our own investigation of Local
624 and found the following information which
we pass onto [sic] you
1 In August of 1973 Local 624 engaged in a
disastrous strike against PDM, in Fresno,
which lasted for two months During this
time, all of the employees of PDM were out of
work and could not cross the picket line with-
1 The tally of ballots for the election showed that, of approximately 12
eligible voters, 12 cast valid ballots of which 5 were for and 7 against the
Petitioner
2 Employers suggestion of oral argument is hereby denied
out being subjected to heavy fines BY THEIR
UNION After all their hours of picketing,
harsh and bitter feelings, no pay checks, no
employment insurance , and no doubt, heat
prostration and fatigue , the employees re-
turned to the job with EXACTLY THE
SAME CONTRACT AS THE COMPANY
OFFERED PRIOR TO THE STRIKE Also,
the company because of loss of orders during
the strike , was forced to reduce its work force
and has never reached the same level again
This is what the union did for the employees
of PDM111
The Regional Director found the letter conveyed
the false impression to employees that the Petitioner
had led employees of PDM out on a long strike dur-
ing which no gains were made, when, in fact, the
final contract offered by PDM and accepted by Lo-
cal 624 was different from the contract offered prior
to the strikes She concluded the misrepresentation
was substantial and made at a time when the Peti-
tioner was prevented from making an effective reply
Contrary to the Regional Director, we find that the
Employer's letter does not contain a substantial mis-
representation warranting setting aside the election
While it may not have been technically accurate to
say the final contract was "exactly the same as the
contract offered prior to the strike," in our opinion
the changes contained in the final contract were mi-
nor in nature, according the employees only minimal
increases in their fringe benefit package 4 In these
circumstances, we do not view the Employer's char-
acterization of the final contract as a substantial de-
parture from the truth' The Petitioner's objections
are therefore overruled 6
Accordingly, as the objections have been overruled
and the tally of ballots shows that a majority of the
3 PDM and Local 624 agreed to the following three changes in the final
contract (1) to increase the employees life insurance benefits from $4 000
to $5,000 at no cost to the employees, (2) to include a dues-checkoff provi-
sion in the contract and (3) to replace the existing medical insurance cover-
age under which employees could not receive reimbursement for medical
expenses until they had met a $100-deductible fee, with a plan prepaid by
the Employer under which the employees were required to pay only a mini-
mal fee each time they sought medical attention at a participating clinic
4 The Employer contends the changes in health benefits actually amount-
ed to a reduction in cost to PDM of 7 cents per hour per employee, while
the changes in the employees' life insurance benefits cost only an additional
4 cents per hour per employee We also note that PDM and Local 624
agreed to revert back to the old contracts health plan after a 3-month
period
5 Modine Manufacturing Co, 203 NLRB 527 (1973)
6 Member Penello agrees that the alleged misrepresentation does not war
rant setting the election aside, but does so for the reasons as set forth in his
dissenting opinions in Medical Ancillary Services, Inc 212 NLRB 582
(1974) and Ereno Lewis 217 NLRB 239 (1975)
Chairman Murphy agrees with the conclusion that the election should not
be set aside inasmuch as she would reach the same result under any view of
the applicability or validity of Modine Manufacturing Co supra and Holly
wood Ceramics Company Inc, 140 NLRB 220 (1962)
224 NLRB No 122
TRI-EX TOWER CORP 681
valid votes have not been cast in favor of the Peti-
tioner, we shall certify the results of the election
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for the Shopman's Local
Union No 624 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of Sec-
tion 9(a) of the National Labor Relations Act, as
amended
MEMBER FANNING, dissenting
I cannot agree with my colleagues to deny these
employees a second election as directed by the Re-
gional Director To be told in bold type included in a
letter received election eve that this Union-at a
plant about 50 miles away-received EXACTLY THE
SAME CONTRACT AS THE COMPANY OFFERED PRIOR TO THE
STRIKE, when in fact there were two improvements in
the poststrike contract in addition to a dues-checkoff
provision, which to some employees would be a de-
sirable convenience, is in my view a substantial mis-
representation which the Union had no opportunity
to rebut
The majority opinion assesses the materiality of
the misrepresentation by how little the contract cost
the Employer I would not The added cost of $1,000
more in life insurance benefits is set off against the
apparent reduced cost of a medical expense reim-
bursement provision that avoids a $100-deductible
requirement, and the checkoff provision is ignored
Our Act is a public interest statute Surely bargain-
ing benefits are to be measured by employee impact
and employer effort and concern in negotiating
them, not by the comparatively low cost in cents per
employee hour By no stretch of the imagination was
the contract "exactly the same" after the 6-week
strike These were significant improvements received
at the other plant and these employees should not
have gone to vote under the erroneous impression
that the strike effort produced no benefits to offset
the hardships so graphically depicted in the
Employer's last-minute missive
In my view the laboratory conditions the Board
requires for its elections were here violated