Bailey Meter Co.

National Labor Relations Board - Board DecisionsSep 7, 1972

198 N.L.R.B. 1227 (N.L.R.B. 1972)

BAILEY METER COMPANY Bailey Meter Company and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), Petition- er. Case 8-RC-8267 September 7, 1972 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 8 on August 20, 1971, among the employees in the unit described below. The tally of ballots furnished the parties showed that of approximately 1,460 eligible voters, 1,261 cast valid ballots,' of which 617 were for, and 644 against, the Petitioner. There were no challenged ballots. Thereafter, the Petitioner filed timely objections to conduct affecting the results In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on October 12, 1971, issued and duly served on the parties his Report on Objections and Order Directing Hearing on Objections.2 On November 22, 23, and 24, and December 2, 1971, a hearing on objections was held before Hearing Officer William E. Powers. On March 9, 1972, the Hearing Officer issued his report recommending that the objections be overruled and that a certification of results be issued. On March 27, 1972, the Petitioner filed exceptions to the report,3 and on April 12, 1972, the Employer filed a brief in opposition to Petitioner's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. 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. I Five ballots were void 2 During the Regional Director's investigation, the Petitioner withdrew 6 of its 10 objections In his report, therefore , the Regional Director ordered a hearing to be held on the issues raised by Petitioner's remaining four objections , 2, 4, 8, and 10 3 Petitioner has excepted only to the overruling of Objection 10 * As no exceptions were filed thereto, the Hearing Officer 's recommen- 1227 2. The Union is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce, concerning the representation of certain employees of the Employer, exists within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees 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 manufacturing facilities at 29801 Euclid Avenue, Wickliffe, Ohio, and 1050 Ivan- hoe Road, Cleveland, Ohio, including plant clerical employees and group leaders, but exclud- ing all other employees, all office clerical employ- ees, professional employees, technical employees, managerial employees, confidential employees, guards and supervisors as defined in the Act. 5. The Board has considered the Hearing Offi- cer's report and recommendations, the Petitioner's exceptions thereto, and the entire record in this proceeding, and hereby adopts the Hearing Officer's findings, conclusions, and recommendations as modified herein.4 ' The Hearing Officer has recommended that Peti- tioner's Objection 10 be overruled on the basis that the Petitioner had an adequate opportunity to reply to the Employer's "misrepresentation." While we agree with the result reached by the Hearing Officer, we do not agree with his rationale .5 We disagree with the Hearing Officer's finding that Petitioner had an adequate opportunity to make an effective reply to the Employer's leaflet distributed less than 24 hours before the elections We shall overrule the objection on the ground that the Employer's statements in the leaflet did not constitute a misrepresentation. The Hearing Officer found that the leaflet, "The Detroit Broach Story," distributed by Employer Bailey Meter, a subsidiary of Babcock & Wilcox, on the day prior to the election, constituted a misrepre- sentation of fact but that Petitioner had sufficient time to respond. In reference to UAW activities at Detroit Broach (another subsidiary of Babcock & Wilcox) following the expiration of the UAW and Detroit Broach contract on June 30, 1971, this leaflet stated: "At 10:00 a.m, on Friday, August 13, 1971, the UAW pulled all of the employees out of the plant. For the Union to start this strike there was no secret ballot election. The Union did not even make dation that Objections 2, 4, and 8 be overruled is adopted pro forma 5 Member Jenkins would adopt the Hearing Officer's rationale that the Petitioner did have time to reply to the Employer's statements and would overrule the objection on that basis. 6 Ipsen Industries Division of Ako Standard Corporation, 180 NLRB 412; Western Electric Company, Inc, 172 NLRB No 59; Hollywood Ceramics Company, Inc, 140 NLRB 221. 198 NLRB No. 162 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees aware of the last offer made by the company." The misrepresentation found by the Hearing Officer is based on the fact that on June 24, nearly 2 months prior to the August 13 Detroit Broach strike, at a union meeting in which the progress of the negotiating committee had been reported , some type of vote was taken by those present to authorize a strike . However , the record shows that at a negotiat- ing meeting held 2 months later, on August 13, 1971, Detroit Broach substantially improved its bargaining proposals concerning wages and other matters. The Union did not call a meeting of the employees to present Detroit Broach 's improved offer , but instead called a strike immediately following the end of this negotiating meeting. During the election campaign at Bailey Meter, one of Petitioner 's leaflets represented to the Bailey Meter employees that a strike vote would be taken only after "there is NO HOPE of conciliatory action from management ," and "after due deliberation and consideration of ALL the facts." The Employer's statement as to the Detroit Broach strike must, therefore , be considered in the context of the issues which had been under discussion in the campaign. And in that context , the failure to mention a strike authorization vote taken nearly 2 months prior to the strike was immaterial . Such a vote would not be one taken when "ALL the facts" had been presented to the employees for consideration, nor one when there was "NO HOPE of conciliatory action from manage- ment." In the context , then, of Petitioner's own explanation of a strike vote , the Employer's state- ment was intended to, and did , emphasize that no vote of the kind referred to in Petitioner 's literature had been taken at Detroit Broach . The Employer's statement , therefore , when considered in context, did not contain a substantial or material misrepresenta- tion. Thus, while the Board adopts the Hearing Officer's recommendation that the objections be overruled, we base this conclusion on our finding that , under the circumstances shown , the Employer 's leaflet did not constitute a substantial distortion of what had occurred at Detroit Broach. As the Petitioner has failed to receive a majority of the valid votes cast , we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America (UAW), and that said labor organization is not the exclusive representative of all the employees , in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended.