Precision Fabricators, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1977

233 N.L.R.B. 1404 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Precision Fabricators, Inc. and Local 455, Internation-
al Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO, Petitioner. Case 29-
RC-3697
December 22, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, PENELLO, AND MURPHY
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 objections to an
election held on March 11, 1977, and the Regional
Director's report recommending disposition of same
(pertinent portions of which report are attached
hereto as an appendix). The Board has reviewed the
record in light of the exceptions and brief, and
hereby adopts the Regional Director's findings and
recommendations. 2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots has been cast for Local 455, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the following
appropriate unit for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All production, maintenance, shipping and re-
ceiving employees and truck drivers employed by
the Employer at 200 Broadway, Garden City,
New York 11040, excluding office clerical em-
ployees, technical and professional employees,
sales personnel, watchmen, guards, all other
employees, and supervisors as defined in the Act.
MEMBER JENKINS, dissenting in part:
Although I agree with my colleagues' adoption of
the Regional Director's recommendations overruling
the Employer's Objections 2 through 6, I would
direct a hearing with respect to Objection 1.
Objection I contends that the day before the
election Petitioner distributed a leaflet which misre-
presented the wages, pensions, and other similar
benefits allegedly achieved by the Petitioner at a
shop doing similar sheet metal work. In support of its
objection, the Employer submitted an affidavit which
stated that a survey of its competitors' sheet metal
shops revealed no wages which approached those
233 NLRB No. 199
stated in the leaflet and that the representations with
respect to pensions were misleading. Under the
standards of Hollywood Ceramics,3 to which I adhere,
a substantial misrepresentation as to wages and
fringe benefits of employees represented by Petition-
er in other plants which the Employer had no
opportunity to correct may reasonably be expected
to have a significant impact on the election and thus
interfere with employees' free choice. The Employ-
er's affidavit in this case raises a material issue as to
whether there were substantial misrepresentations of
this character. I would therefore direct a hearing to
resolve this issue.
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 36 for, and 30 against, the
Petitioner; there were 3 challenged ballots, an insufficient number to affect
the results.
2 Member Jenkins joins in adopting the recommendations overruling
Objections 2 and 3 but does not rely on Shopping Kart Food Market, Inc.,
228 NLRB 1311 (1977), in which he dissented. He finds the misrepresenta-
tions, if any, not material under the standards of Hollywood Ceramics
Company, Inc. 140 NLRB 221 (1962). For the reasons stated in his dissent
he would direct a hearing with respect to Objection I.
a Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962).
APPENDIX
OBJECTIONS 1, 2 & 3:
With regard to Objection 1, the Employer refers to
literature which was distributed by the Petitioner to the
Employer's employees the day before the election, a copy
of which is attached as Appendix A. Despite its claims that
the representations therein with regard to the "wage rates
. . . holidays, pensions and other similar benefits" are a
"gross misrepresentation," the Employer, although request-
ed to do so, has not furnished any evidence that the
representations contained in the literature are false or
misleading. The Employer merely states that it contacted a
number of its competitors and was informed, in confi-
dence, that they did not pay the rates noted in the
literature. On the other hand, Petitioner, in the course of
the investigation, submitted a copy of a current collective-
bargaining agreement between it and an employer in a
business similar to the Employer's which contains wage
provisions, holidays, and vacation benefits substantially
the same as that set forth in the literature. In addition, its
pension records substantiate its claim regarding the
amounts of pension the two retirees named in its literature
are presently receiving.
In connection with Objection 2 the Employer states that
he operates a sheet metal shop manufacturing sheet metal
parts mainly for the aerospace and computer industries. He
alleges that Art. IV of the Constitution of Petitioner's
International ("Jurisdiction") includes a list of the kinds of
shops the International claims for its members and that the
By-Laws of the Petitioner, in its preamble, incorporates the
Constitution by reference. Therefore, the Employer con-
tends that since its particular kind of shop is "specifically"
excluded from the list, the Petitioner misrepresented to the
employees that it could represent them.
However, an examination of the provisions of the
Constitution and By-Laws established that the list referred
to includes shops doing all types of metal work. Moreover,
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PRECISION FABRICATORS
the list does not purport to be all inclusive and there is no
specific exclusion of the kind of work performed by the
Employer. Further, Petitioner asserts that in fact it repre-
sents employees in shops similar to the Employer, and in
support thereof has provided a copy of a current contract it
has with a shop similar to that of the Employer.
With regard to Objection 3 the Employer states that on
March 4, 1977, the Petitioner handed out a leaflet entitled
"Bombs Away! Look Out For Booby Traps," a copy of
which is attached as Appendix B. The Employer contends
that the leaflet misrepresented to the employees that the
Employer was threatening to close the shop if the Petition-
er won the election and that the Employer was making
threats and promising benefits in violation of the National
Labor Relations Act, herein called the Act. A review of the
leaflet indicates that in general terms it warns of various
campaign techniques used by employers such as "love
I Shopping Kart Food Market, Inc. supra at 1313.
letters" to employees' homes and "scare" tactics. It does
not refer to the Employer specifically nor does it state that
such techniques are contrary to law.
On April 8, 1977, the National Labor Relations Board,
herein called the Board, held in Shopping Kart Food
Market, Inc., 228 NLRB 1311 (1977), that it would no
longer set aside elections on the basis of misleading
campaign statements unless a "party has engaged in such
deceptive campaign practices as improperly involving the
Board and its processes," or makes "use of forged docu-
ments which render the voters unable to recognize the
propaganda for what it is."' Inasmuch as there is insuffi-
cient evidence to establish that in fact the Petitioner has
engaged in any misrepresentations, and since, in any event
the misrepresentations alleged by the Employer do not fall
within the exceptions established in Shopping Kart, it is
recommended that Objections 1, 2, and 3 be overruled.
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