The Halsey W. Taylor Co.

National Labor Relations Board - Board Decisions

May 19, 1964

147 N.L.R.B. 16 (N.L.R.B. 1964)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the aforesaid Regional Director , shall, after being signed by the
Respondent as indicated , be returned forthwith to the Regional Director for dis-
position by him.
(c) Notify the Regional Director ,. in writing , within 10 days'from the date of this
Order, what steps have been taken to comply herewith . 15 It is further recommended
that , unless within 20 days from the date of receipt of this Trial Examiner 's Decision,
Respondent notify said Regional Director , in writing , that it will comply with the
foregoing Recommended Order , the National Labor Relations Board issue an order
requiring Respondent to take the aforesaid action.
35 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 239, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AND TO ALL
EMPLOYEES OF ABBEY AUTO PARTS CORP.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , you are notified that:
WE WILL NOT for a period of 1 year from August 31, 1963, picket, or cause
to be picketed, or threaten to picket Abbey Auto Parts Corp., where an object
thereof is to force or require Abbey Auto Parts Corp. to recognize or bargain
collectively with us, or to force or require the employees of the aforesaid Com-
pany to accept or select us as their collective -bargaining representative.
WE WILL NOT picket, or cause to be picketed, or threaten to picket Abbey
Auto Parts Corp., where an object thereof is to force or require Abbey Auto
Parts Corp. to recognize or bargain collectively with us, or to force or require
the employees of the aforesaid Company to accept or select us as their collective-
bargaining representative, where a valid election which we did not win has been
conducted by the National Labor Relations Board among the employees of
Abbey Auto Parts Corp. within the preceding 12 months.
LOCAL 239, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By---------------
-----------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building , 745 Fifth Avenue, New York , New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
The Halsey W. Taylor Company and United Steelworkers of
America, AFL-CIO, Petitioner . Ca, e No. 8-RC-5433. May 19,
1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a. stipulation for certification upon consent election, an
election by secret ballot was conducted on February 19, 1964, under
the supervision and direction of the Regional Director for the Eighth
Region, among employees in an agreed unit. Upon the conclusion of
the balloting, the parties were furnished with a tally of ballots which
147 NLRB No. 1.
THE HALSEY W. TAYLOR COMPANY 17
showed that, of approximately 107 eligible voters, 52 cast valid ballots
for, and 49 against, the Petitioner. Thereafter, the Employer filed
timely objections to conduct affecting the results of the election.
After an investigation, the Regional Director issued his attached
Report on Objections, in which he recommended that objection No. 1
be sustained, objection No. 2 be overruled, and that the election be set
aside and a new election ordered. The Petitioner filed timely excep-
tions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the Act,-the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Brown, and Jenkins].
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 purposes of the Act to assert jurisdiction
herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion 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 production and maintenance employees at the Employer's
Warren, Ohio, plant, excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined in the Act.
5. The Boai-d has considered the Employer's objections, the Re-
gional Director's report, and the Petitioner's exceptions thereto, and
adopts the Regional Director's recommendation to set aside the
election.'
[The Board set aside the election conducted herein on February 19,
1964.]
[Text of Direction of Second Election omitted from publication.]
'The Petitioner 's exceptions , in our opinion , raise no substantial issues which would
warrant reversal of the Regional Director 's findings and recommendations . As no excep-
tions were filed to the Regional Director ' s recommendation that objection No. 2 be over-
ruled, this recommendation is adopted pro forma.
REPORT ON OBJECTIONS
Pursuant to a stipulation for certification upon consent election executed on Febru-
ary 11, 1964, and approved by Regional Director Philip Fusco on February 13,
1964,. an election was. conducted on February 19, 1964, among the employees in the
following unit: .
All production,and maintenance employees , excluding all office clerical em-
ployees, professional employees , guards, and supervisors as defined in the Act.
756-236-65-vol. 147-3
Is DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon conclusion of the balloting the parties were furnished a tally of ballots
which showed that of approximately 107 eligible voters, 101 cast ballots of which
52 were for the Petitioner and 49 against the Petitioner. There were no challenged
ballots.
Thereafter, the Employer filed timely objections to conduct affecting the results
of the election and duly served a copy of said objections on the Petitioner. A copy
of the objections is attached hereto and marked "Exhibit 1."
Pursuant to the provisions of Section 102.69 of the Rules and Regulations of the
Board, I have investigated said objections and make the following findings, con-
clusions , and recommendations.
Objection No. 1
Here the Employer objects to the contents of the Petitioner's leaflet which it
attaches to its objections as exhibit A. Apart from possible misrepresentations in
the leaflet, I find nothing objectionable therein, the text being typical of campaign
propaganda which the Board does not attempt to censor.
The Employer, however, also argues generally that the information contained in
the leaflet is ". . . false , fraudulent and deceptive." While so arguing, it submitted
evidence of only one instance of an untruth. In the absence of more specificity, I
shall therefore limit my consideration and discussion only to that which the Em-
ployer specifically points out as being false.
The Employer's objection is directed to the following language in the leaflet:
Question: What is the financial status of the Halsey-Taylor Company?
Answer: The Company has sales amounting to $3,000,000 annually. Stock-
holders in December 31, 1962 received a total of $2,350,807.. . .
Investigation reveals that the Petitioner, utilizing the services of its research staff,
was advised in writing that, among other things, the Employer's sales were estimated
to be in excess of $3 million annually and that its ". . . Net Worth (Stockholder's
Equity) totaled $2,350,807 on December 31, 1962." It was this information which
formed the basis for the question and answer set forth above although, as is obvious,
the information was erroneously interpreted or transcribed when the leaflet was pre-
pared. Investigation further discloses that in 1962 stockholders did receive dividend
payments, but these amounted to less than 2 percent of the amount which the leaflet
implies they received.
In Hollywood Ceramics Company, Inc., 140 NLRB 221, the Board, at page 224,
stated as follows:
We believe that an election should be set aside only where there has been a
misrepresentation or other similar campaign trickery, which involves a substan-
tial 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 on the election.
However, the mere fact that a message is inartistically or vaguely worded and
subject to different interpretations will not suffice to establish such misrepre-
sentation as would lead us to set the election aside. Such ambiguities, like
extravagant promises, derogatory statements about the other party, and minor
distortions of some facts, frequently occur in communication between persons.
But even where a misrepresentation is shown to, have been substantial, the
Board may still refuse to set aside the election if it finds upon consideration of
all the circumstances that the statement would not be likely to have had a real
impact on the election. For example, the misrepresentation might have oc-
curred in connection with an unimportant matter so that it could only have
had a de minimis effect. Or, it could have been so extreme as to put the em-
ployees on notice of its lack of truth under the particular circumstances so that
they could not reasonably have relied on the assertion. Or, the Board may find
that the employees possessed independent knowledge with which to evaluate
the statements.
It is obvious that the statement that in 1962 stockholders received in excess of
$2 million is a misrepresentation . It is similarly obvious that because-the-leaflet
was distributed to employees at approximately 4 p.m. on February 18-15 hours b^
fore the first voting session was to begin-the Employer did not have time to make
an effective reply. The remaining question therefore is whether the misrepresenta-
tion may reasonably be expected to have had a significant impact on the election.
In my opinion it did.
THE HALSEY W. TAYLOR COMPANY 19
I recognize that in election campaigns unions generally allude to an employer's
reluctance or refusal to treat its employees equitably. Such tactics, however, have
long been recognized by the Board as a form of propaganda which employees are
able to evaluate. See, e.g., Felix Bonura and George Weidert, d/b/a Felix Eonura
Company (Magnolia Broilers), 119 NLRB 1620, footnote 2; Wheelerweld Division,
C. H. Wheeler Manufacturing Company, 118 NLRB 698. Here, however, the Peti-
tioner grossly misrepresented the amount of disbursements made to stockholders in
1962. While employees are interested in an employer's sales figures, since continued
sales obviously assure continued employment, they are also extremely interested in
whether they equitably share in that which their labor produces. The Petitioner's
answer to the question it poses implies that in 1 month, an amount equal to almost
80 percent of the Employer's annual sales was distributed to stockholders, thereby
further implying that stockholders, rather than employees, are rewarded when.busi-
ness conditions are favorable but that a more equitable distribution-presumably
only through union representation-is possible. The only conclusion which em-
ployees could reach under these circumstances is that the gross inequity of favoring
stockholders to such an extent over employees could be remedied only by utilizing
the services of a bargaining representative. As such, I conclude that the misrepre-
sentation exceeded the permissive bounds of propaganda and that the election, which
was decided by a margin of only three votes, did not reflect the free choice of the
employees in selecting a bargaining representative.
Nor do I believe that the amount alleged to have been distributed to stockholders
is such as to put employees on notice of its lack of truth, since I do not believe that
employees, generally, are so familiar with corporate procedures, accounting prac-
tices, and tax laws as to recognize the improbability of the Petitioner's statement.
In addition, the fact that such a specific figure is used, that is $2,350,807, a figure
apparently being correct to the last odd dollar, gives the statement a high degree of
authenticity upon which employees reasonably could be expected to rely. More-
over, employees may well have concluded that some of the alleged high dividend
payment to stockholders in 1962 may have been paid out of financial reserves or
undivided profits of previous years.
In view of the foregoing, I recommend therefore that Employer's objection No. 1
be sustained.
Objection No. 2
Here the Employer objects on the ground that "The Petitioner, by and through its
organizers and representatives, caused the official notices . . . of the election .. .
to be defaced by marking an `x' in the union box on the sample ballots shown
thereon ..." and also objects to the display of union propaganda throughout the
plant.
As to the defacement of the official notices, the evidence indicates that the Em-
ployer removed such notices immediately upon discovering the defacement and, fur-
ther, that the parties responsible for such defacement are unknown. Under these
circumstances I find no basis for setting aside the election. See, e.g., Duro Fittings
Company, 123 NLRB 1568.
As to the display of union propaganda throughout the plant, the Employer has
offered no evidence as to the nature or content of such propaganda. In the absence
of such evidence, I conclude that this allegation has no merit since the mere display
of propaganda is not in itself objectionable.
I conclude therefore that objection No. 2 is without merit and recommend that it
be overruled.
CONCLUSIONS AND RECOMMENDATIONS
I conclude that Employer's objection No. 1 raises substantial and material issues
as to the validity of the election, has merit, and should be sustained. It is therefore
recommended that the election be set aside and a new election ordered. I further
conclude that Employer's objection No. 2 is not supported by substantial evidence
and does not raise material issues of either fact or law with respect to the election
and should be overruled.
EXHIBIT 1
OBJECTIONS
The Halsey W. Taylor Company, Employer herein, does hereby object to the con-
duct of the United Steelworkers of America, AFL-CIO, Petitioner herein, prior to
the election held February 19,1964, amongst the employees of Employer wherein
52 votes were cast for, and 49 votes were cast against, Petitioner, in the following
respects:
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. At the end of the first shift at 4 P.M. on February 18, approximately 15 hours
before the polls opened at 7 A.M. on February 19, 1964, the Petitioner, by and
through its organizers and representatives, distributed to the employees of Employer
and at the plant gate false, deceptive and fraudulent literature reasonably calculated
to affect the right of free choice of the employees of Employer in the election on
February 19. Such false, deceptive, and fraudulent literature was a written flyer, a
photocopy of which is attached hereto and marked Exhibit A, and was distributed
at such a time that it was impossible for Employer to demonstrate the falsity thereof
and the employees did not have sufficient information so as to know of the falsity
and misleading nature of such literature.
2. On February 17 and 18 the Petitioner, by and through its organizers and repre-
sentatives, caused the official notices of the forthcoming election which were posted
throughout Employer's plant to be defaced by marking an "X" in the union box on
the sample ballots shown thereon; the walls, girders, and equipment in at least fourteen
different places in Employer's plant were defaced with union propaganda; and a
55 inch by 15 inch union propaganda sign was hung on Employer's fence adjacent to
the employee entrance during the evening of February 18 and was only discovered
and removed 45 minutes before the polls opened on February 19.
Employer says that the campaign literature distributed by Petitioner 15 hours be-
fore the opening of the polls is completely false and fraudulent; the claimed profits
of shareholders is false; and the clear implication that the Petitioner would preserve
the Employer's current benefits of employment and require the Employer or its
shareholders to disgorge its so-called profits to the employees if they voted for the
union is completely false, fraudulent and deceptive. Employer further believes that
the claim of the benefits to the employees of a company organized four years ago in
the area are also false. Further, such literature is deceptive in attempting to convey
the idea to the employees that the National Labor Relations Board is supporting the
the Petitioner.
Employer further believes that the magnitude of the fraud and deception prac-
ticed by the Petitioner is evidenced by the fact that 4 days before the election the
Petitioner held a meeting to determine whether to call off the election because of
lack of interest of the employees in the Petitioner.
WHEREFORE, Employer requests that the National Labor Relations Board set aside
the results of the election, which were 52 for and 49 against Petitioner with 6 eligible
voters not voting, and order a new election under such circumstances as to permit
the employees to exercise a free choice as to whether or not they wish Petitioner. to
represent them.
Respectfully submitted.
THE HALSEY W. TAYLOR COMPANY,
By (S) JAMES W. FREY, Its Attorney.
Copy of the foregoing objections mailed this 21st day of February, 1964 to the
Petitioner to the attention of Russell Thomas, its Sub-District Director.
(S) JAMES W. FREY, Attorney for Employer.
EXHIBIT A
MEMO FOR THE BENEFIT OF THE EMPLOYEES OF THE HALSEY-TAYLOR COMPANY
Following will be the answers to some of the questions that have risen through-
out the Company. I hope that these answers will enlighten the employees so they
cannot be used as concerted seeds of discontent to persuade the employees to vote
against the United Steelworkers of America:
Question: Do the employees lose any benefits that they now have if they join the
United Steelworkers of America?
Answer: When the Steelworkers negotiate a standard contract with the Halsey-
Taylor Company, there will be a section of the contract which will state that any
benefits the employees now enjoy will remain in effect for the duration of the contract.
Question: Will the Company pay for the hospitalization, surgical, and life insur-
ance benefits?
Answer: You will have a standard Steelworkers' contract that is non-contributory
by the employees, and the Company will pay all of the premiums.
Question: When does an employee become eligible to participate in the Pension
Plan? Who pays. for it?
Answer: All employees of the Halsey-Taylor Company will be eligible. from the
first day they are hired.. The Company, starting as of the hiring date, will put so
many cents, per, hour. . for each hour worked by the employees into a pension fund
that will be administered by a joint committee of the Company and the Union.
BERGER POLISHING, INC. 21
Question: Will the Company go out of business if organized by the United Steel-
workers of America?
Answer: One plant, your neighbor, the Warren Metal Decorating Company, which
was organized in 1960, told the employees that they would have to move out of the
area or close the plant. At that time, they had 74 employees with a very low wage
rate and no fringe benefits. Today the Warren Metal Decorating Company employs
around 150 people, and has more and better benefits than the basic steel companies.
Question: What is the financial status of the Halsey-Taylor Company
Answer: The Company has sales amounting to $3,000,000 annually. Stock hold-
ers in December 31, 1962 received a total of $2,350,807. At the present time the
current assets are four times the current liabilities. It is considered that when the
assets are two times the current liabilities a company is making a substantial profit.
The Company is using this profit, not to compensate the employees for their work
with the Company, but for the purpose, now, of reprisal against their employees,
such as has been going on with one of the employees of the Company at the present
time.
If you continue to allow this Company to shirk its responsibilities you may be the
next employee unjustly discharged, and forced into poverty, with the Company will-
ing to spend thousands of dollars to defy the Federal Agencies. How can you cope
with a Company that is defying the National Labor Relations Board, which is an
agency of the Federal Government?
Question: Will there be a pure wage inequity program for job classification estab-
lished in the Company?
Answer: During contract negotiations, the Steelworkers will have an industrial
engineer who will accompany the committee, that will negotiate a true classification
for jobs in the plant, which will standardize the wage scale.
RUSSELL THOMAS,
Sub-District Director, United Steelworkers of America.
Berger Polishing , Inc. and Local 10, Metal Polishers , Buffers,
Platers & Helpers, International Union , AFL-CIO. Cases Nos.
13-CA-5515 and 13-CA-5515-2. May 20, 1964
DECISION AND ORDER
On November 4, 1963, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices, and recommended
that the allegations of the complaint pertaining thereto be dismissed.
Thereafter, Respondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief, and the General Counsel filed a brief
in support of the Trial Examiner's Decision, and a brief in answer to
Respondent's exceptions and brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
147 NLRB No. 7.