Conalco, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1976

225 N.L.R.B. 879 (N.L.R.B. 1976)

CONALCO, INC.
Conalco , Inc. and Aluminum Workers International
Union, AFL-CIO, Petitioner . Case 26-RC-5158
August 10, 1976
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS
By MEMBERS FANNING, PENELLO, AND WALTHER
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 26 on
December 17, 1975, an election was held on January
14, 1976,' among the employees in the appropriate
unit.2 Upon the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that, of approximately 78 eligible voters, 29 cast bal-
lots for and 45 cast ballots against Petitioner; no bal-
lots were challenged. The Petitioner filed timely ob-
jections to conduct affecting the results of the
election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation and on Febru-
ary 23, 1976, issued a Supplemental Decision and Di-
rection of Second Election in which he recommend-
ed that Objection 3 be overruled and that Objections
1 and 2 be sustained and a new election directed.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review in which it urged that the
Regional Director departed from Board precedent in
sustaining the objections.
By telegraphic order dated April 12, 1976, the Na-
tional Labor Relations Board granted the request for
review and stayed the election pending decision on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
Objections I and 2 are based on two documents,
referred to as Exhibits A and B, which were prepared
and signed by Lucretia Birmingham, a unit employ-
ee, and distributed by her husband the day before the
election. The Regional Director concluded that Ex-
hibit B which merely set forth various arguments
' Unless otherwise indicated, all dates refer to 1976
2
All production and maintenance employees employed at the Employer's
Newbern , Tennessee , location excluding office clerical employees , profes-
sional employees , guards and supervisors as defined in the Act
879
against the Union was not objectionable and did not
under any circumstances warrant setting aside the
election. We agree with the Regional Director.
Exhibit A quotes the starting and top pay for as-
sembly workers at the Employer's Benton, Kentucky,
plant where the production employees are currently
covered by a collective-bargaining agreement with
the Union and quotes the similar pay ranges for the
Employer's plant involved herein. Petitioner con-
tends that Exhibit A is a material misrepresentation
in that it states that the starting rate for assembly
workers at the Benton plant is $2.48 per hour when in
fact the rate is $2.63 per hour.'
As noted above, both Exhibits A and B were pre-
pared by unit employees Lucretia and William Bir-
mingham. Mrs. Birmingham obtained the wage rates
contained in Exhibit A by telephone from a clerical
employee in the Benton plant. Although the Birming-
hams used the Employer's supplies and equipment to
prepare the leaflets, there was no evidence that the
Employer played any role in preparing or distribut-
ing them. In fact, after becoming aware of the leaf-
lets, Plant Manager Simpson told Mrs. Birmingham
that she would have to pay for the paper that she
used to duplicate the leaflets. The leaflets were dis-
tributed by Mr. Birmingham with the Employer's
knowledge.4 The parties agree that the earliest distri-
bution of Exhibit A was around 9 or 10 o'clock on
January 13, the day before the election. The Peti-
tioner did not receive a copy of the leaflet until the
afternoon of January 13.
The subject matter of Exhibit A and particularly
the union representation of the Employer's employ-
ees at other plants was a major campaign issue and
Petitioner handbilled the plant on a number of occa-
sions concerning this issue. The Employer conceded
that, in a speech delivered by Plant Manager Simp-
son on January 6 and 9, there was a comment to the
effect that wages and benefits at the plant were
"much better" than at the unionized Benton plant,
but that no specific comparison of wage rates was
made.
On the foregoing facts the Regional Director
found that Exhibit A which quoted the starting pay
at Benton as $2.48 when in fact it was $2.63 amounts
to a misrepresentation of material fact which oc-
curred at a time when Petitioner had no adequate
opportunity to respond. He further found that, al-
though the evidence failed to establish that the Em-
ployer was responsible for the preparation of the
documents, the Employer permitted the distribution
of the document during working time and made no
3 The wage rate at the Benton plant was in fact $2 48 per hour until
Sevember I. 1975, at which time it was raised to $2 63 per hour
There were no rules in existence bearing on the distribution of literature
in the Newbern plant
225 NLRB No. 123
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort to correct the information contained therein.
He concluded that the misrepresentation, though
prepared by rank-and-file employees, reinforced the
statement made in the Employer's speech that the
Newbern rates were "much better" than the union-
organized Benton plant and was a material misrepre-
sentation sufficient to warrant setting aside the elec-
tion.
In its request for review, the Employer contends,
inter aha, that the Regional Director erred in setting
aside the election because the misrepresentations
were not material, and therefore could not have af-
fected the results of the election. We agree that the
alleged misrepresentations referred to in Objection I
and 2 are not under any standard material in nature
and that the election should not be set aside.' In so
5 Member Fanning agrees with the result reached herein because he does
not find that the misrepresentation is objectionable under the standards set
forth in Hollywood Ceramics Company, Inc, 140 NLRB 221 (1962) For the
reasons set forth in his dissenting opinions in Medical Ancillary Services,
finding, we particularly rely on the fact that the doc-
ument was prepared and distributed by rank-and-file
employees and that there is no evidence that the Em-
ployer in any way assisted the employees involved.
Accordingly, we shall overrule the Petitioner's Objec-
tions 1 and 2 and 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 Aluminum Workers
International Union, AFL-CIO, 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 Rela-
tions Act, as amended.
Inc, 212 NLRB 582 (1974), and Ereno Lewis, 217 NLRB 239 (1975), Mem-
ber Penello agrees that the misrepresentations referred to in Objections I
and 2 do not warrant setting the election aside Member Walther agrees
with the conclusion that the election should not be set aside based on the
alleged misrepresentations inasmuch as the same result is reached under any
view of the applicability of Modme Manufacturing Company, 203 NLRB 527
(1973), and Hollywood Ceramics Company, Inc, supra