Allis-Chamlers Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 588 (N.L.R.B. 1969)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allis-Chalmers Manufacturing Company and
International Union , United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW, Petitioner . Case 10-RC-7575
June 11, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to the provisions of a Stipulation for
Certification upon Consent Election, executed on
November 13, 1968, an election by secret ballot was
conducted on December 3, 1968, under the direction
and supervision of the Regional Director for Region
10, among the employees in the stipulated unit. At
the conclusion of the election, the parties were
furnished a tally of ballots which showed that of
approximately 24 eligible voters, 23 cast valid
ballots, of which 14 were for, and 9 against, the
Petitioner , and 2 ballots were challenged.
Thereafter, the Employer filed a timely objection to
conduct affecting the results of the election.
In accordance with Section 102.69 of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended , the Regional Director
conducted an investigation and, on February 5,
1969, issued and duly served upon the parties his
Report on Objections, in which he recommended
that the objection be overruled in its entirety, and
that an appropriate certification of representative
issue . Thereafter, the Employer filed timely
exceptions to the Regional Director's
recommendation that the objection should be
overruled , asserting that the election should be set
aside and that the Board should direct a second
election.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three -member panel.
The Board has considered the Regional Director's
Report, the Employer's exceptions thereto, and the
entire record in this case , and makes the following
findings:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization which
claims to represent certain employees of the
Employer.
3. A question affecting commerce exists
concerning the representation 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, as stipulated by the
parties, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All inspectors, testers and shop clerks in the
Material Control, shipping and receiving
departments at the Employer's Gadsden, Alabama,
plant, but excluding professional, technical,
confidential, other clerical and supervisory
employees and guards as defined in the Act, and all
other employees.
5. On November 26, 1968, the Employer
distributed a letter to its employees in the voting
unit which listed nine benefits enjoyed by them. On
or about November 29, in response to the
Employer's letter, the Petitioner mailed a reply
letter to the employees, which was received by them
on or before December 2, 1968. The Employer's
operations were closed from November 28 through
December 1 in conjunction with the Thanksgiving
holiday and ensuing weekend, and the contents of
the Petitioner's letter did not come to the attention
of the Employer until the morning of December 3,
the date of the election. The Petitioner's letter to the
employees contained, inter alga, the following
paragraph:
The company tells you about the benefits they
have in effect for you, example, S.U.B., Pensions,
Insurance , Vacations, Holidays, and all the other
reasons they tell you why you do not need a
union. Remember all of these benefits were first
negotiated by the union and won at the bargaining
table and the benefits the company wants to put
in effect for you they do but they do not have to
and they can take them away from you just as
quick....
Upon investigation, the Regional Director found
that five of the nine listed benefits were enjoyed by
the salaried employees in some form prior to the
advent of the Petitioner as the collective-bargaining
representative of the Employer's production and
maintenance employees in November 1948. In
addition, the Regional Director found that two of
the nine listed benefits are not mentioned in the
Petitioner's contract and do not apply to the
production and maintenance force, and that the
scope and coverage of several of the listed benefits
for salaried personnel are more favorable than their
counterparts applicable to the employees covered by
the Petitioner's contract. Accordingly, the Regional
Director found, and we agree, that the Petitioner's
assertion that all the listed benefits were first
negotiated by the Union and won at the bargaining
table, was patently false.
Notwithstanding his finding as to the untruth of
the Petitioner's assertion, the Regional Director
concluded that the subject of the misrepresentation
was generally susceptible to employee evaluation as
to its truth, significance, and import. To buttress
this conclusion the Regional Director found that the
employees were aware that they had not been
represented by the Petitioner in the past; that in the
past the Employer had made available several
176 NLRB No. 73
ALLIS-CHALMERS MANUFACTURING CO. 589
brochures and pamphlets explaining various aspects
of the salaried benefit program ; that the salaried
personnel presumably had access to copies of the
Petitioner' s contract ; and that on or about
November 18, 1968, the Employer disseminated to
its salaried personnel a handbill which touted the
superiority of salaried employee benefits over those
provided in the Petitioner ' s contract and gave
specific examples of four areas where benefits to
salaried employees were superior to those provided
to employees covered by the contract. In the opinion
of the Regional Director these factors required the
conclusion that the salaried employees were apprised
of most of the superior aspects of their benefit
program as compared with the Petitioner's contract
benefits.
We disagree with the Regional Director's
conclusion . The Petitioner ' s assertion was a
substantial departure from the truth as to a matter
of the utmost concern to the salaried employees, and
it was distributed at a time which precluded the
Employer from making an effective reply. The
misrepresentation concerned a matter within the
intimate and exclusive knowledge of the Petitioner.
Contrary to the Regional Director, the record does
not warrant the conclusion that the salaried
employees possessed sufficient independent
knowledge to assess the lack of truth in the
Petitioner's assertion . There is no evidence in the
record to support the presumption that salaried
employees had access to the Petitioner's contract,
but even if the presumption were supported, a
review of the contents of the contract would not
serve to rebut the Petitioner's assertion that all the
benefits enjoyed by the salaried employees were first
negotiated by the Petitioner and won at the
bargaining table. Similarly, the Access of the
employees to the pamphlets previously distributed
by the Employer and to the contents of the
Employer's letter of November 18, which concerned
only four rather than all the benefits enjoyed by the
salaried employees, would not place the employees
in a position adequately to assess the Petitioner's
claim that all of the benefits they enjoyed
originated, ab initio, through the
collective-bargaining efforts of the Petitioner.
Accordingly, we shall set the election aside and
direct that a new election be held.
ORDER
It is hereby ordered that the election previously
conducted herein on December 3, 1968, be, and it
hereby is, set aside.
[Direction of Election' omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc. 156 NLRB 1236; N.L R B. v. Wyman-Gordon Company.
394 U.S. 759, decided April 23, 1969 Accordingly , it is hereby directed
that an election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 10 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed