Bor-Ko Industries, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 25, 1970181 N.L.R.B. 292 (N.L.R.B. 1970) Copy Citation 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 Copy with citationCopy as parenthetical citation