Pneumo Dynamics Corp.

National Labor Relations Board - Board Decisions

May 2, 1969

175 N.L.R.B. 849 (N.L.R.B. 1969)

NATIONAL WATERLIFT CO.
National Waterlift `Company , a division of Pneumo
Dynamics Corporation and District Lodge No.
117, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 7-RC-8975
May 2, 1969
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
- ELECTION
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 22, 1968, the Regional Director for
Region 7 issued a Supplemental Decision, Order,
and Direction of Second Election, in which he
adopted the Hearing Officer's Report on Objections,
sustained Petitioner's Objection No. 1 and a
supplemental objection and set aside the election.
Thereafter, in accordance with the National Labor
Relations Board Rules and Regulations, as
amended, the Employer filed a timely Request for
Review of the Regional Director's Supplemental
Decision on the grounds that he erred in sustaining
the objections on the facts of this case.' By
telegraphic Order dated January 7, 1969, the
National Labor Relations Board granted the request
for review and stayed the second election. The
parties filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the entire record in this
case with respect to the Regional Director's
determination under review, and makes the
following findings:
In its Objection No. 1, the Petitioner alleged that
in a company publication entitled "Waterlift Extra"
received by employees the day before the election,
the Employer made substantial misrepresentations
as to the wage rates and other benefits at other
companies. In its supplemental objection, Petitioner
alleged that the Employer announced, also on the
day prior to the election, certain increased cafeteria
privileges previously denied to the employees. The
Regional Director, as noted, sustained both of these
objections. The Employer argues on review that the
misrepresentations contained in the "Waterlift
Extra" and the change in cafeteria privileges were
too insignificant to have had any meaningful impact
upon the election. We agree.
As to Objection 1, the pamphlet "Waterlift
Extra" compared the Employer's wages and other
benefits with those of seven other companies
identified only as "A" through "G." At the hearing
on objections, all companies were identified and
those whose wages and benefits are pertinent hereto
'No request for review has been filed concerning the Regional Director's
determination to overrule the remaining objections.
849
are Companies "A," "B," and "D" which are,
respectively, Union Pump Company, Battle Creek
Packaging Machinery Company, and the Hydreco
Division of General Signal Corporation.
As to Union Pump Company, the record reflected
that the wage rates shown by the Employer in
"Waterlift Extra" were in error to the extent that
the rate shown for each classification failed to
include a 7-cent "cost of living" increase then in
effect pursuant to the contract between that
company and Petitioner. The Employer introduced
testimony to the effect that this error was due to
oversight on the part of the employee who compiled
the figures for "Waterlift Extra." Whatever the
explanation be for the error, it further appears,
however, that even if the 7-cent increase had been
reflected in the Employer's pamphlet, the
Employer's existing rates for all classifications noted
was between 9 cents and 64 cents higher than those
paid by Union Pump.
With regard to Battle Creek Packaging
Machinery, the record showed that the wage rates
and pension benefits shown by the Employer in
"Waterlift Extra" were those in effect under a
preexisting contract between that company and
Petitioner. These rates were upgraded effective some
5 days before the election under the terms of a new
agreement between Petitioner and Battle Creek
Packaging Machinery, which was ratified on August
30, 1968. Due to various delays, copies of the new
agreement did not become available until October 8
or 9. The Employer contends that it thus had no
way of knowing of these rate increases on
September 3, 1968, which was the date that the
"Waterlift Extra" pamphlet was prepared.
The quoted rates, the rates under the new
contract, and the Employer's prevailing rates are set
forth in the following tabulation:
Quoted
Rate
New
Contract
Rate
Employer's
Rate
Machine Repair 3.73 3.94 4.07
Machinist 3.71 3.94 3.97
Grinder 3.35 3.79 3.74
Toolmaker 3.73 3.94 4.07
Assembler 3.58 3.79 3.62
Layout Inspector
or "A" 3.58 3.79 3.97
Stockkeeper 3.35 3.57 3.29
Janitor 3.05 3.27 2.88
Pension 1.75 2.50 4.00
Thus, it appears that even by comparison with the
new rates for the Battle Creek Packaging Machinery
employees, the Employer's rates for four
classifications are higher; they are 5 and 17 cents
lower for the classifications of grinders and
assemblers, and they are 39 cents lower for janitor
rather than 17 cents lower as reflected in "Waterlift
Extra", and 28 cents rather than 6 cents lower for
stockkeeper. The Employer's pension rate is
175 NLRB No. 135
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significantly higher than either the old or new
pension rate for the other company's employees.
As to the Hydreco Division of General Signal
Corporation, "Waterlift Extra" claimed that this
Company's employees had no pension plan. The
record indicates that under the terms of the contract
between Hydreco Division and Petitioner, dating
back to 1967, a pension plan was to go into effect
on July 20, 1968, although it remained to be
determined by negotiations or arbitration which of
two plans would be selected. It does not appear that
any plan was actually in effect at the time of the
election herein, although credits were being set aside
for current retirees pending adoption of a particular
plan on the basis of arbitration. To the extent that
no particular plan was then in existence, the
Employer's statement in "Waterlift Extra" in this
regard was correct.'
In Hollywood Ceramics Company, Inc., 140
NLRB 221, 224, the Board stated that it would
limit its intervention into cases involving claimed
misrepresentations to those situations where " ..
there has been a misrepresentation or other
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
deliberate or not, may reasonably be expected to
have a significant impact upon the election."
We do not believe in all the circumstances of this
case that the misrepresentations by the Employer in
"Waterlift Extra" were so substantial as to be
reasonably expected to have had a significant impact
upon the election. The Employer's obvious message
to its employees in comparing its rates and benefits
with those of some seven other companies was to
show that its benefits were similar or higher. The
only claimed inaccuracies in this document
concerned rates and benefits of the three companies
noted. And, even given the Employer's
misrepresentations , its rates and benefits were, in
almost every instance of comparison with these
three companies , actually similar or higher, and in
some instances when lower, they were admittedly
lower. While the Employer's claim that Hydreco
Division employees have no pension plan was an
oversimplification of the true facts in this regard, it
'There is also evidence that Hydreco Division employees have an older
plan to which that company makes substantial contributions but that plan
is essentially a savings plan and withdrawals therefrom in the form of an
annuity are optional.
was at worst an imprecise expression not uncommon
in campaign literature. As the Board has noted
before in evaluating conduct of the type involved in
this case, absolute precision of statement and
complete honesty in campaign literature are not
always obtainable in an election campaign nor are
they expected by employees.' We, therefore, find no
merit in Petitioner's Objection No. 1.
As to Petitioner's supplemental objection with
respect to the Employer's announced increase of
cafeteria privileges on the day before the election,
we believe that this matter also was of little
significance in the election. At most this change,
which involved opening the cafeteria for 15 minutes
before the start of each shift, for use by employees
with proper shift identification badges, was of
minimal significance and would not be likely to
interfere with the employees' free choice. We thus
find no merit in the supplemental objection.
In view of the foregoing, we overrule Petitioner's
Objection No. 1 and its supplemental objection.
Inasmuch as all objections to the election are now
overruled and as the tally of ballots shows that
Petitioner has not received a majority of the ballots
cast in the election, we shall certify the results.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for District Lodge No. 117,
International Association of Machinists and
Aerospace Workers, AFL-CIO, and that said labor
organization is not the exclusive representative of
the employees in the unit found appropriate within
the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
MEMBER ZAGORIA , dissenting:
I would accept the Regional Director ' s Report on
Objections, and set aside the election . In my view
the combination of the misrepresentations in the
Employer's publication and the increase in cafeteria
privileges , both occuring the day before the election,
cannot be dismissed as insignificant. The timing of
both the misrepresentation and the extra benefit
bestowed demonstrates that the Employer sought to
influence votes by nonpermissible means. I am not
prepared to conclude that the means were not
successful.
'Hollywood Ceramics Company, Inc., supra