The Jeffrey Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 13, 1970

180 N.L.R.B. 701 (N.L.R.B. 1970)

THE JEFFREY MANUFACTURING COMPANY
The Jeffrey Manufacturing Company, Morristown
Division and Shopmen's Local Union Number 715
of the International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO, Petitioner . Case 10-RC-7758
January 13, 1970
DECISION ON REVIEW AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On July 24, 1969, the Regional Director for
Region 10 issued a Supplemental Decision , Order,
and Direction of Second Election in the
above-entitled proceeding, in which, on the basis of
his investigation of the Employer's objections to
conduct affecting the results of the election
hereinbefore held on June 20, 1969,' he overruled
Objections numbered 2, 3, and 4, sustained
Objection I involving alleged misrepresentations
contained in a campaign leaflet of the Petitioner, set
aside the election, and directed a second election.
Thereafter, the Petitioner filed "exceptions" in the
nature of a request for review of the Regional
Director ' s Supplemental Decision , on the ground
that he erred in concluding that the leaflet in
question contained substantial misrepresentations.
By telegraphic Order dated August 20, 1969, the
National Labor Relations Board granted the request
for review and stayed the second election pending
decision on review. Thereafter, the parties filed
timely briefs on review. On September 12 the
Employer filed a motion to strike from the record a
letter attached to the Petitioner's brief on review.
The Petitioner filed opposition, attaching to it, as
Exhibit "A," portions of the contract covering the
Employer's Columbus, Ohio plant as they relate to
the alleged misrepresentations .' The Employer also
submitted an affidavit controverting certain
statements made in the Petitioner 's opposition.
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 entire record in this
case with respect to the issues under review,
including the findings of fact contained in the
Regional Director's Supplemental Decision and the
briefs and submissions of the parties ,3 and makes
the following findings:
Objection I alleges substantial and material
misrepresentations by the Petitioner concerning the
'The tally of ballots for the election showed that of approximately 194
eligible voters, 103 cast valid ballots for, and 86 against the Petitioner, and
I cast a void ballot. There were no challenged ballots.
'Exhibit "A" comprised pages 64 through 87 of the contract
'For the reasons appearing below , we find it unnecessary to rule on the
Employer's motion to strike.
701
wage rates paid and to be paid under
collective-bargaining agreements at other plants,
under such circumstances that the Employer had no
opportunity to adequately respond.
The Regional Director found that the Petitioner
distributed a leaflet to employees in front of the
Employer's Morristown plant between 4:30 p.m. and
5:30 p.m. on the day before the election. The leaflet
referred to the distribution on the previous day of
blankbooks by employees opposed to unionization
and went on to ask:
. . . why over 600 employees who work for the
company in the Columbus plant, have negotiated
a good union contract that is not BLANK and
has some of the following classifications and wage
rates:
Tool & Die Men $3.75 per hour
Punch Press Operators $3.20 per hour
Assemblers $3.20 per hour
Welders $3.33 per hour
Helpers $2.63 per hour
Janitors $2.63 per hour
No one in the Company's Columbus plant starts
for less than $2.33 per hour, including the janitor,
who starts at $2.33 per hour and is raised in a few
months to $2.63 per hour, which is more than many
of you who perform skilled work at the Morristown
plant make. We have learned that the Company
also gives the Columbus plant employees eight (8)
paid holidays through their UNION CONTRACT,
plus many, many more working conditions you
Morristown plant employees will never, never,
never get, unless you organize into a union shop.
If 600 Columbus plant employees can organize
into a union shop without any trouble and in the
next automatic wage increase of their union contract,
can get the skilled employees a raise which will be
about $4.00 per hour, why can't you at the
Morristown plant do the same for yourselves
through this union? ....
Although the Employer immediately began efforts
to contact the Columbus plant in order to check the
validity of the statements in the leaflet, its efforts
were unsuccessful until 10 a.m. the day of the
election, 5 1/2 hours before the polls opened.
The Petitioner received the figures used in the
leaflet by telephone from unnamed parties in
Columbus. The Columbus contract is between
Jeffrey Mining Machinery Co. and International
Association of Machinists and Aerospace Workers,
AFL-CIO (herein referred to as the IAM) and its
Local Lodge 1038, effective December 1, 1968, until
November 27, 1971. The Regional Director pointed
to the facts that pages 66 and 67 of the contract
reflect the wage rates for nonincentive and incentive
employees effective December 1, 1968 to November
30, 1969; that only 15 Columbus employees are
nonincentive (3 tool-and-die makers and 12 janitors)
and the rest are incentive employees; that the
180 NLRB No. 108
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract presently provides for a 10-cent-per-hour
cost-of-living increase across the board ; and that the
contract provides for 2 automatic increases in hourly
rates effective December 1, 1969, and November 30,
1970. He concluded that the wage rates quoted in
the leaflet are erroneous when compared with the
current wage scales provided in the contract,
including the 10 cents cost- of-living increment. Thus,
the highest paid tool-and-die maker receives $3.63
per hour plus the 10 cents cost- of-living increment
as opposed to the $3.75 per hour wage listed in the
leaflet; the highest paid punch press operator
receives a base rate of $2.70 plus 10 cents
cost-of-living as contrasted with the $3.20 cited
wage ; assemblers in the highest category a base rate
of $2.61 plus 10 cents compared with the cited
$3.20; welders in the highest grade a base rate of
$2.70 plus 10 cents compared with the $3.33 quoted.
The Regional Director also found that the current
starting rates for incentive trainees, under the
contract, is $2.15 per hour, plus the 10 cents
cost-of-living increment , contrary to the Petitioner's
leaflet' s assertion that no one starts for less than
$2.33 per hour; and that a janitor starts at $2.25 per
hour plus 10 cents and reaches the 5th step rate of
$2.63 plus 10 cents in 15 months, contrary to the
Petitioner' s statement that the janitor is raised to
$2.63 "in a few months."
Finally, the Regional Director found error in the
Petitioner's statement that skilled employees at the
Columbus plant , " in the next automatic wage
increase of their union contract ," get "a raise which
will be about $4.00 per hour," pointing to the fact
that, effective December 1, 1969, the highest paid
employees (tool-and-die makers in labor grade 2,
step 5) will receive $3.75 per hour plus cost-of-living
adjustment , while press operators and assemblers at
the highest grade and step would receive only $2.69
plus the cost-of-living adjustment ; and that effective
November 30, 1970, the highest paid employee will
receive $3.87 per hour plus the cost-of-living
adjustment , or a minimum of $3.97 per hour.
The Petitioner ' s principal contention is that the
Regional Director , in comparing the wage rates
quoted in the leaflet with the provisions of the
contract, failed to take into account the contract's
Gain Share System as an additional increment to
wages of employees in incentive classifications. We
find merit in this contention.
Appendix B of the contract is captioned "The
Jeffrey Gain Share System ." Section l thereof, on
page 87 of the contract , states as follows:
The Gain Share System is based on a fair and
practical use of standard data , elemental time
studies or estimated time values based on
comparison of similar types of work. Such
standards are to be based upon the quantity and
quality of production to meet requirements which
can be produced by an average man working at
normal pace , average skill, and under
standardized conditions . Earnings under the above
conditions are not quaranteed but are designed to
average twenty-five percent (25%) above the
employee base rate. Hours gained will be paid at
the rate of fifty percent (50%) of operators base
pay rate.[sic]
The Employer, in its motion to strike, argued that
the letter attached to the Petitioner's brief as to the
operation of this system was inadmissible because it
was an unsworn document and contained an
erroneous illustration of the implementation of the
Gain Share System. However, the affidavit of the
Columbus plant's personnel director, conceded that
"based on the plant average for incentive employees,
the average gain in earnings for incentive workers is
31% to 32%." (See fn. 3, above.) We base our
findings on that percentage.
As the Gain Share System is applicable to
incentive employees, who comprise all but 15 of the
600 employees in the Columbus unit which is under
contract with the IAM, the taking into account of
this increment to hourly earnings results in the
Petitioner ' s leaflet understating rather than
overstating certain wages at Columbus. Such wage
statements cannot be viewed as substantial
misrepresentations within the meaning of Hollywood
Ceramics Company, Inc., 140 NLRB 221. Thus the
highest paid punch press operators' actually receive
$2.70 plus a 10-cent cost-of-living increase, plus
approximately an 84-cent incentive gain (computed
at an average 31 percent), or $3.64 an hour as
compared with the $3.20 quoted in the leaflet;
assemblers $2.61 plus 10 cents plus 81 cents, or
$3.52 as compared with the $3.20 quoted; welders
$2.70 plus 10 cents plus 84 cents, or $3.64 as
compared with the $3.33 quoted.
Unlike Grede Foundries, Inc., 153 NLRB 984,
the quoted rates were those of a union other than
Petitioner, and the Petitioners' leaflet stated that it
had "learned of' the contract. Employees are
presumed to take note of whether or not the party
making the statements possesses intimate knowledge
of the facts.' Unlike Hollywood Ceramics, the plant
was identified in the leaflet as located in Columbus
- a large city in a highly-industrialized neighboring
State - and as belonging to the same Employer.
Independently it appears that the Morristown
location may have been a partial plant removal
from Columbus.' We conclude that the Employer's
Morristown employees had some basis for
evaluating the leaflet even without full information.
In all the circumstances we are not prepared to say,
as the Employer contends, that the failure of
Petitioner to distinguish in the leaflet between
"non-incentive" and "incentive" wages had a real
impact on the election. The Employer would
'We note that the leaflet started out by saying that the Columbus
contract had "some" of the following classifications and wage rates
'See Hollywood Ceramics Company. Inc, 140 NLRB 221, 224, fn. 10
'This appears from the letter which the Employer seeks to strike for
other reasons.
THE JEFFREY MANUFACTURING
interpret this failure to specifically refer to incentive
rates where applicable as an attempt to convince the
Morristown employees that all employees at
Columbus had a guaranteed wage rate. As there is
nothing to indicate that a guaranteed wage rate was
an issue in the campaign, we will not infer that the
leaflet standing alone erroneously gave that
impression. We construe the leaflet as correctly
stating the actual wages of employees who now turn
out to be unaffected by incentive procedures, and as
understating the actual wages of some employees
who now turn out to be affected by a substantial
incentive increment of 31 to 32 percent, so that for
all practical purposes the employees, in voting, were
not misled by the information set forth in the
leaflet.
The Regional Director also found inaccurate
other statements' made in the leaflet, such as the
statement that janitors reach the rate of $2.63 "in
just a few months" in fact the time period was 15
months, and the statement that "skilled employees"
could get a rate of "about $4.00 per hour in the next
automatic wage increase of their union contract"
when the facts were that this would apply to only 3
tool-and-die makers and occur under the second
automatic increase , effective November 30, 1970.
However, as the second paragraph of the leaflet
alerted employees to the differential between the
wages of the tool-and-die makers and those of the
other arguably skilled employees, we do not believe
that the Morristown employees were misled by the
'As it appears that incentive trainees come under the Gain Share
System , and as almost all new hires are incentive trainees, we view the
statement that no Columbus employee "starts for less than $2 33 per
hour" as essentially accurate even though the basic contract rate is $2.15
703
fourth paragraph into believing that the $4 rate
applied to such other employees. Under the
guidelines set forth in Hollywood Ceramics
Company, inc., we do not view these partial
departures from the truth as conveying a
substantially erroneous picture of the Columbus
wage situation such as to warrant setting aside the
election herein.8 Contrary to the Regional Director,
therefore, we shall overrule Objection 1.
Accordingly, as the objections have been
overruled and as the Petitioner has received a
majority of the valid ballots cast in the election, we
shall certify it as the exclusive bargaining
representative of the employees in the appropriate
unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Shopmen's Local Union
Number 715 of the International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, has been designated and selected by a
majority of the employees of the Employer in the
appropriate unit as their representative for the
purposes of collective bargaining, and that, pursuant
to Section 9(a) of the Act, as amended, the said
labor organization is the exclusive representative of
all employees in such unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions
of employment.
'See Follett Corporation , 160 NLRB 506, 164 NLRB 378, 397 F.2d 91
(C A 7), National Waterlift Company, a Division of Pneumo Dynamics
Corporation. 175 NLRB No 135, Southern Foods. Inc, 171 NLRB No.
131, The Holtite Manufacturing Co.. Inc . 146 NLRB 385