Bor-Ko Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1970

181 N.L.R.B. 292 (N.L.R.B. 1970)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bor-Ko Industries , Inc. and District No. 10,
International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
30-RC-984
February 25, 1970
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election approved January 29, 1969, ' an
election by secret ballot was conducted on February
14, under the direction and supervision of the
Regional Director for Region 30, among the
employees in the agreed-upon unit. Thereafter, the
Petitioner filed timely objections to conduct
affecting the results of the election. On June 20, the
parties, by written stipulation, agreed to the holding
of a second election. On August 15, a second
election by secret ballot was conducted. At the
conclusion of the election, the parties were furnished
a tally of ballots which showed that of
approximately 97 eligible voters, 53 cast ballots for,
and 35 cast ballots against, the Petitioner. There
were 4 challenged ballots which were insufficient to
affect the results of the election. Thereafter, the
Employer timely filed objections to conduct
affecting the results of the election.
In accordance with National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on
September 19, issued and duly served upon the
parties his Report on Objections, in which he
directed that a hearing be held to resolve the issues
raised by the objections. He further ordered that the
Hearing Officer designated to conduct the hearing
prepare and cause to be served on the parties a
report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board as to the disposition of said issues.
Pursuant to the Regional Director's Order, a
hearing was held before Paul J. Cherner, Hearing
Officer. All parties participated and were given full
opportunity to examine and cross-examine witnesses
and to introduce evidence bearing on the issues. On
November 19, the Hearing Officer issued and duly
served on the parties his Report on Objections in
which he recommended that the objections be
overruled in their entirety, and that a Certification
of Representative issue . The Employer timely filed
exceptions to the report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
All dates hereinafter are 1969
Board has delegated its powers in connection with
this case to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer 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 collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees,
including toolroom employees, of the Employer at
its Milwaukee, Wisconsin, plant; excluding office
clerical employees, professional employees, guards
and supervisors, as defined in the Act.
5. The Board has reviewed the rulings made by
the Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's Report, the Employer's exceptions
and brief, and the entire record in the case, and
hereby orders a new election for the reasons given
below. Z
On August 13, 2 days before the election,
Petitioner held an all-day open house for unit
employees at a restaurant near the Employer's
plant. On several occasions during the open house,
Spehert, Petitioner's business representative, stated
to employees that the Employer had been
"cheating" the employees on overtime pay for the
past 7 years, ' that the Wage and Hour Division of
the Department of Labor had been contacted, and
that after the Division's investigation of the
Employer's records, the employees would receive
backpay. In addition, Spehert circulated among the
employees a copy of a letter, dated August 12, that
he had sent to the Wage and Hour Division
requesting an investigation of the Employer's
records. Spehert's statements were discussed among
the employees in the plant lunchroom the following
day. Some time after the election, the Wage and
Hour Division investigated the Employer's records,
and found them to be in good order,
The Hearing Officer recommended dismissal of
this objection on the grounds that Spehert had a
legal right to contact the Wage and Hour Division;
that the employees possessed independent knowledge
with which to evaluate Spehert's statements; that the
record showed that the employees laughed at
Spehert's statements; and that Spehert was not
As the Board finds objection 5 a sufficient basis to warrant setting aside
the election , we find it unnecessary to discuss objections I through 4
'One of the employees who testified on this point said that Spehert
stated that he had "proof' that the Employer had been cheating
181 NLRB No 46
BOR-KO INDUSTRIES, INC. 293
shown to be in an authoritative position whereby he
would possess intimate knowledge of the subject
matter.
We do not agree that Spehert's conduct is
unobjectionable A misrepresentation of this nature
could undoubtedly have a material effect upon the
attitude of employees toward the Employer and
toward their need for union representation.
Spehert's false statements reflected unfairly not only
upon the Employer's integrity in complying with
federal law, but also upon the Employer's honesty in
dealing with its employees. The record establishes
that Spehert had no reasonable basis for baldly
accusing the Employer of "cheating" on overtime. '
The record also shows that, while one employee
testified that other employees laughed about the
accusation, others were not sure whether or not it
was true, and that there had been considerable
concern among employees in the past about
overtime pay.
The employees' testimony at the hearing in this
matter belies the Hearing Officer's conclusion that
they had independent knowledge with which to
evaluate the situation. Almost every witness
examined on this matter, including Spehert, testified
that the pay stubs were too complex for evaluating
the validity of employee complaints. On the other
hand, Spehert was Petitioner's business agent, and
as such, very likely appeared to the employees to be
knowledgeable in the field of wage and hour laws
This belief in Spehert's knowledge and authority
could only have been reinforced when the employees
read Spehert's letter to the Wage and Hour
Division, complaining about deficiencies in their
overtime pay.
We conclude, therefore, that Spehert was
responsible for a serious misrepresentation, material
to the issues and to the voting decision of the
employees; that the employees were in no position
to evaluate the accuracy of the misrepresentations,
and many of them may have been influenced by
Spehert's statement; and that Spehert's position as a
paid union representative invested his misstatements
with the appearance of emanating from a source
which could be expected to be authoritative about
the application of the wage and hour laws.
For the above reasons, we find merit in objection
5. Accordingly, we shall order that the second
election be set aside, and shall direct that a new
election be held.
ORDER
It is hereby ordered that the election conducted
herein on August 15, 1969, be, and it hereby is, set
aside.
[Direction of Third Election' omitted from
publication.]
'Spehert testified that he had received many complaints from employees
about overtime pay, and had been investigating the matter for about 8
months prior to the election When asked why he had waited until 3 days
before the election to write to the Department of Labor, Spehert testified
that only on August 10 had he received the conclusive evidence which he
deemed necessary before he would approach a governmental body such as
the Wage and Hour Division However, on cross-examination as to the
nature of this evidence , Spehert merely reiterated his prior testimony about
receiving complaints for the past 8 months, and also stated that he had
received numerous pay stubs from employees, although he mentioned only
employee Zientara by name These stubs , however, rather than supporting
Spehert's suspicion of "cheating," were, by his own testimony, unusable
for calculations in that respect
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company.
394 U S. 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 30 within 7
days after the date of issuance of this Notice of Third Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed