Wagner Electric Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1748 (N.L.R.B. 1977)

1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wagner Electric Corporation and Local Union 903,
International Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 15-RC-5947
January 31, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended , a three-
member panel has considered the Employer's objec-
tions to an election held on August 27, 1976,' and the
Regional Director's report recommending disposition
of same .2 The Board has reviewed the record in light
of the Petitioner 's exceptions and supporting brief
and the Employer's opposition, and hereby adopts
the Regional Director's findings and recommenda-
tions to the extent consistent with this Decision.3
The Regional Director recommended that the
election be set aside, based upon Objection 7. We
disagree.
Petitioner is alleged to have made a material
misrepresentation when, 2 days prior to the election,
it circulated a handbill to the Employer's employees
correctly stating that its contract with Westinghouse
Electric Corporation at Athens, Georgia, provided
for cost-of-living increases, but incorrectly stating the
effective dates of those increases. Thus, the handbill
stated that an increase of up to 12 cents per hour
would be effective in November 1976, when the
increase would not be effective until December 13,
1976; that an increase of up to 23 cents per hour
would be effective July 11, 1977, when the increase
would not be effective until December 12, 1977; and
that an increase of up to 23 cents per hour would be
effective July 10, 1978, when the increase would not
be effective until December 11, 1978. The Regional
Director concluded that the handbill misrepresented
by a total of approximately 10-1/2 months the
effective dates of cost-of-living increases, that the
Employer had insufficient time to effectively reply,
and that these misrepresentations required that the
election be set aside.
Under the test set forth in Hollywood Ceramics
Company, Inc.,4 the Board will not set aside the
election unless a misrepresentation constitutes a
substantial departure from the truth at a time when
the other party is prevented from making a reply so
that the misrepresentation may be expected to have a
significant impact on the election. Here there was no
misrepresentation as to the level of the cost-of-living
would be more than yearly, but merely misstatements
of from less than 1 month to 5 months as to exactly
when the three yearly increases were to be effective.
We find that these misstatements are not such a
substantial and material departure from the truth as
to warrant setting aside the election.5 Accordingly,
the objection is overruled.
As we have overruled all of the objections, and as
Petitioner has received a majority of the valid ballots
cast in the election, we shall certify it as the exclusive
representative 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 Local Union 903, Interna-
tional Brotherhood of Electrical Workers , AFL-CIO,
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended , said labor organi-
zation is the exclusive representative of all the
employees in the following appropriate unit for the
purpose of collective bargaining in respect to rates of
pay, wages , hours of employment , or other terms and
conditions of employment:
All production and maintenance employees em-
ployed by the Employer at its Lumberton , Missis-
sippi , plant , excluding office clerical employees,
guards , and supervisors as defined in the Act.
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was 27 for, and 23 against, the Petitioner,
there were no challenged ballots
2 The relevant portion thereof is attached hereto as an appendix.
3 In the absence of exceptions, we adopt pro forma the Regional
Director's recommendation that all objections other than Objection 7 be
overruled
4 140 NLRB 221, 224 (1962).
S Member Penello agrees that the alleged misrepresentations do not
warrant setting aside the election or directing a hearing , but so finds for the
reasons set forth in his dissenting opinions in Ereno Lewis, 217 NLRB 239
(1975), and Medical Ancillary Services, Inc, 212 NLRB 582 (1974)
Chairman Murphy also agrees with the conclusion that the election should
not be set aside based on the above alleged misrepresentations inasmuch as
the same result is reached under any view of the applicability or validity of
Hollywood Ceramics, supra
APPENDIX
Objection No. 7: 2
During the course of the investigation, evidence
was submitted by the Employer to show that the
Petitioner on August 25, 1976, passed out to unit
employees a handbill which it submits materially
misrepresented the effective dates on which employ-
ees who were represented by the Petitioner at another
company (the Westinghouse Electric Corporation
plant, in Athens, Georgia) were to receive cost of
living increases for the years 1976, 1977, and 1978. A
increases which were to be granted, or that such 2 Number assigned by the undersigned
227 NLRB No. 253
WAGNER ELECTRIC CORP.
copy of Petitioner's handbill is attached hereto and
made a part hereof as Attachment B. [Omitted from
publication.] The portion of the handbill which the
Employer claims to be materially misleading reads as
follows:
Effective July 12, 1976-.60¢ per hour for all
employees plus an additional skill trades adjust-
ment of .05¢ per hour to .50¢ per hour cost of
living adjustment -Nov. 1976 up to. 120 per hour.
Effective July 11, 1977-.25¢ per hour plus an
additional cost of living up to .23¢ per hour based
on the rise in inflation.
Effective July 10, 1978-.25¢ per hour plus an
additional cost of living up to .23¢ per hour.
[Emphasis supplied.]
The Employer's labor relations administrator, Lach-
lan Cameron, stated that following the election of
August 27, 1976, he contacted the labor relations
department of Westinghouse at Athens, Georgia, and
was informed that pursuant to the recently negotiated
agreement, cost of living increases of $.12 per hour
and $.23 per hour would be given effective December
1976 ($.12 per hour), December 1977 ($.23 per hour),
and December 1978 ($.23 per hour). The Employer's
plant manager, Melvyn Barham, stated that Petition-
er's handbill was handed out on the afternoon of
August 25, 1976, to its employees and that on either
August 26 or August 27, 1976, it received a copy of
the handbill.3
The Petitioner, through its International represen-
tative (Herman Holley), who participated in the
negotiations with Westinghouse, acknowledged that
Petitioner's handbill contained inaccuracies pertain-
ing to the effective dates whereby unit employees at
the Westinghouse plant were to receive the aforemen-
tioned cost of living increases. A copy of the relevant
portions of the Westinghouse agreement entitled,
"1976 SUPPLEMENT TO Agreement Dated as of
the 25th Day of September, 1958 between Westing-
house Electric Corporation and International Broth-
erhood of Electrical Workers, AFL-CIO, Local
2109" (hereinafter referred to as the Westinghouse
agreement), is attached hereto and made a part
hereof as Attachment C. [Omitted from publication.]
Examination of this agreement and, in particular,
Section 1(c)(4) and (6) of said agreement (page 3)
reflects that the effective dates for the above cost of
living increases were December 13, 1976, December
12, 1977, and December 11, 1978, and not November
1976, July 10, 1977, and July 11, 1978, as represented
by Petitioner.
1749
Although acknowledging the inaccuracies con-
tained in Petitioner 's handbill , Holley stated that on
the evening of August 25, 1976 , at a union meeting
held at the National Guard Armory in Lumberton,
Mississippi , he explained to the approximately 12
employees in attendance that the cost of living
increases mentioned in Petitioner's handbill would be
effective in December of the respective years (and not
on the dates indicated in the handbill distributed
earlier that day). The Petitioner also presented Jimmy
Russ, business manager and financial secretary for its
Local 903 , and employee witnesses A and B. Russ
stated that he attended the meeting at the Armory but
could not recall much , if anything, being discussed by
Holley or any union representative about Petitioner's
handbill. Employee witness A stated that he attended
the meeting at the Armory and listened to what
Holley had to say about the cost of living increases at
the Westinghouse plant but was unable to recall
anything being said about the effective dates when
the cost of living increases would be made payable to
employees. Employee witness B stated that he attend-
ed the same meeting at the Armory during which
Holley discussed some of the wage increases given to
Westinghouse employees , but could not recall any-
thing being said by Holley pertaining to the cost of
living increases . Witness B further stated that Holley
said that he would try to get the employees more
money and, in this connection , was promising what
Westinghouse employees had by way of wages.
Holley further stated that on August 25, 1976,
between 3 : 30 and 4:00 p .m., he and other representa-
tives of Petitioner (Jimmy Russ, Charles Horhn, and
Lewis Carter) handbilled the Employer 's plant with
the handbill in question (Attachment B). Holley
stated that on this occasion he personally gave a copy
of the handbill to Supervisor Leonard Landrum
(welding department ) and James Landrum , assistant
plant manager. Neither Leonard Landrum nor James
Landrum were presented as witnesses . However, the
Employer did present Plant Manager Melvyn Bar-
ham, who , as mentioned previously , stated that the
handbill was handed out to employees on the evening
of August 25, 1976 , and that a copy of it was received
by him on either August 26 or August 27, 1976.
In Hollywood Ceramics Company, Inc., 140 NLRB
221 at 224 ( 1964), the Board enunciated the principle
governing misrepresentation of facts by parties to an
election . The Board stated that an election will be set
aside "where there has been a misrepresentation or
other similar campaign trickery , which involves a
substantial departure from the truth, at a time which
prevents the other party or parties from making an
effective reply, so that the misrepresentation , whether
3 The election was conducted on August 27, 1976, between the hours of 9
a.m. and 10 am
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliberate or not , may reasonably be expected to have
a significant impact on the election ." [Emphasis
supplied .] In a more recent decision entitled Modine
Manufacturing Company, 203 NLRB 527, 531 (1973),
the Board reaffirmed the previous principle enunciat-
ed in Hollywood Ceramics and stated that common-
sense and administrative expertise should be applied
to determine "whether the alleged misrepresentation
is prima facie sufficient to justify either a hearing or a
rerun election ." In light of the Board's decisions in
Hollywood Ceramics, supra, and Modine Manufactur-
ing, supra, I find that the issues presented by
Petitioner 's handbill (Attachment B) are : 1) whether
Petitioner 's leaflet involved a substantial departure
from the truth ; 2) whether the Employer had an
opportunity to make an effective reply; and 3)
whether the misrepresentation could reasonably be
expected to have had a significant impact on the
election , i.e., whether Petitioner's misrepresentations
had a tendency to materially mislead voters.
Having considered the facts as presented by the
parties in light of the Board 's decisions mentioned
above, I find that Petitioner's handbill misrepresent-
ed by approximately 10-1/2 months the effective
dates whereby employees of Westinghouse were to
receive cost of living increases over a period from
December 1976 through December 1978. Consider-
ing the fact that the Employer had a maximum of a
single workday within which to reply, I find that the
Employer was denied an opportunity to effectively
reply to Petitioner's handbill especially since the
plant under contract with Petitioner was not owned
or operated by the Employer and there is no evidence
to suggest that the Employer was or should have been
aware of the Westinghouse agreement . See, e.g.,
Western Electric Company, Inc., 172 NLRB 563
(1968). Moreover, inasmuch as the handbill was
distributed by Petitioner's International representa-
tive who participated in the Westinghouse negotia-
tions and should have been aware of its particulars,
employees could reasonably be said to have credited
Petitioner's statements contained therein and thus to
have relied upon the misrepresentations contained in
said handbill . Even assuming, as related by Petitioner
Representative Holley, an explanation of the correct
effective dates of cost of living increases under the
Westinghouse contract was orally given the approxi-
mately 12 employees in attendance at the Union's
August 25th meeting, Petitioner did not issue any
corrected handbills at any time prior to the election
nor is there any indication that it contacted any other
employees relative to its outstanding misrepresenta-
tion.
As stated in Modine Manufacturing Company , supra,
the test applied to misrepresentation is not one of
actual impact on the voter 's choice but whether the
alleged misrepresentations had a tendency materially
to mislead. In the present case , the undersigned
concludes that the misrepresentations regarding wag-
es contained in the handbill did have a tendency
materially to mislead . Accordingly , the undersigned
recommends that Objection No. 7, having merit, be
sustained.