Air Control Products, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1229 (N.L.R.B. 1964)

AIR CONTROI; PRODUCTS, INC. 1229
As the Petitioner is willing, however, to represent all the employees
at the terminal in a single unit, we shall amend the unit description
and find that the following employees constitute an appropriate unit
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act : 6
All employees of the Employer at its Doraville, Georgia, bulk fuel
terminal, excluding casual employees, guards, superintendent, assist-
ant superintendent, and all other supervisors as defined in the Act.
The case is hereby remanded to the Regional Director for the Tenth
Region for the purpose of conducting an election in the above appro-
priate unit pursuant to his Direction of Election, except that the eligi-
bility period shall be the payroll period immediately preceding
June 30,1964.
E The unit found appropriate is larger than that sought by the Petitioner and neither
the exact size of the unit nor the exact interest of the Petitioner in the unit is clear from
the record before us . Accordingly , we instruct the Regional Director not to proceed with
the election herein directed until he shall have first determined that the Petitioner has
made^>an adequate ' showing of interest among the employees in the appropriate unit who
are eligible to vote in the election . Foremost Dairies, Inc., 118 NLRB 1424 , 1428, at
footnote 7.
In the event the Petitioner does not wish to participate in an election in such a unit,
we shall permit it to withdraw its petition upon notice to the Regional Director within
5 days from he date of issuance of the Direction and shalt thereupon vacate the Direction
of Election.
Air Control Products , Inc. and United - Steelworkers of America,
AFL-CIO, Petitioner. Case No. 12=RC-1630. `June 30, 1964
DECISION ON REVIEW AND DIRECTION OF NEW
RUNOFF ELECTION
On May 2, 1963, the Regional Director for the Twelfth Region
issued. a Decision and Direction of Election in the above-entitled
proce'e'ding: Pursuant thereto, an election was conducted " on ,June 7,
1963, in the unit found appropriate. Because none of the three choices
on the ballot received a majority, a runoff election was conducted on
June 21, 1963, between the Intervenor, Airco Employees Association,
Inc., and the Petitioner. At the conclusion of the runoff election, the
parties were furnished a tally of ballots, which showed that of ap-
proximately 394 eligible voters, 328 cast valid ballots, of which 125
were for the Petitioner, 194 were for the Intervenor, and 9 cast chal-
lenged ballots. The challenged ballots were insufficient in number to
affect the election results. Thereafter, the Petitioner filed timely ob-
jections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Acting
Regional Director conducted an investigation and on August 9, 1963,
issued and duly served upon the parties a Supplemental Decision,
147 NLRB No. 165.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, and Certification of Representative in which he overruled all
the objections and certified the Intervenor as the exclusive bargaining
representative of the employees in the appropriate unit. The Peti-
tioner, in accordance with Section 102.67 of the Board's Rules and
Regulations, Series 8, as amended, filed a timely request for review,,
on the grounds, inter alia, that the Regional Director erred in his dis-
position of objections land-4.
The Board, by Order dated November 20, 1963, granted the request,
for review as it related to objections 1 and 4 and ordered a hearing 'to
determine the entire contents and time of distribution of leaflets by
the Intervenor, and further ordered that the Hearing Officer desig-
nated for the purpose of conducting such hearing should prepare a
report containing resolutions of credibility of witnesses and findings
of fact, without recommendations. Pursuant thereto, a hearing was
held before Hearing Officer Robert G. Romano. All parties appeared
and participated at the hearing. Full. opportunity to, be heard, to.,
examine and cross-examine witnesses, and to introduce evidence'bear-
ing upon the issues was afforded all parties. On February 3,1964; the
Hearing Officer issued. and. served upon the parties his report., The
Employer and Intervenor filed timely exceptions to the Hearing Offi-
cer's report.
The Board has reviewed the Hearing Officer's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Hearing
Officer's report, the Employer's and In' tervenor's exceptions thereto
and their supporting briefs, and the entire record in this,case, and
hereby makes the following findings :
Objection 4 states that the Employer promised the Intervenor that.
if it won.the election the Employer would grant retroactive pay in-
creases to the employees averaging about $50 per person, and that
the Intervenor repeated this promise to the employees, during the elec-
tion campaign by leaflets and by oral communications. . Evidence sub-
mitted at the hearing indicates that in at least five handbills, distrib-
uted before- the first election and in three handbills issued ,between the
first election and the runoff election, the Intervenor claimed that, in
prior negotiations with Air Control representatives, the Employer
had made the aforementioned retroactive pay promises.'
In the first handbill, distributed about 31/2 weeks before the first
election, the Intervenor stated : "In other letters we will explain all
the statements here and tell you what the Company promised to the
1 A 2-year collective-bargaining agreement between the Employer and the Intervenor
expired on April 14, 1963. On October 30, 1962 , the Board Issued. a Decision and Order
in Air Control Products , Inc., 139 NLRB 607, finding that the Employer had unlawfully
assisted in the formation and organization of the Intervenor in violation of Section
8(a) (1) and (2) of the Act, and ordering the Employer to cease such activities and to-
withdraw and withhold recognition from the Intervenor unless and until it shall have been
certified by the Board . The Steelworkers filed the instant petition on January 16, 1963.
AIR CONTROL PRODUCTS, INC. 1231,
employees here in their past negotiations, and show you why it will
mean money out of your pocket if Airco is not re-elected." Later-
handbills were more specific. Thus, in a leaflet announcing a meet-
ing of the Intervenor to be held about 2 weeks before the first election
the Intervenor advised employees that it would discuss "our promised.
retroactive pay," and in a handbill issued a few days later the Inter-
venor urged employees not to "gamble with . . . your retroactive pay
of $50.00 . . . ." In a leaflet issued about 10 days before the first
election, the Intervenor stated its pay claims with-certainty, leaving-
no doubt about the benefits the employees would receive if it won. It
urged employees to "do a little work for your increase in pay that
you definitely are going to get when AIRCO gets in and for the
RETROACTIVE PAY OF ABOUT $50.00 PER PERSON that you
are going to get when AIRCO is reelected." , According to another
Intervenor handbill issued about a week before the first election, the
$50 of retroactive pay was for "all employees who have worked since
April 14, the day the'contract expired (which the Steelworkers can
NEVER get)."
After the first election -an Intervenor handbill 2 announced a re-
vised retroactive pay estimate because, "It will take at least an extra
month to work Out a contract with the Company if AIRCO wins..
This makes the-retroactive pay we were promised, that much greater;
instead of $50.00, it is now about $70.00, so it becomes- more important.
to get AIRCO in." ' Only 1 or 2 days before the runoff election, an
Intervenor handbill warned the employees not to "gamble with your
retroactive pay.. of approximately $70.00. Don't gamble with your
promised increase. VOTE .AIRCOO !
The Employer's only' response to this campaign literature was a.
"NOTICE TO ALL EMPLOYEES" posted on-the Employer's bul-
letin boards about a week before the first election, which notice re-
mained posted until after the runoff election. - The notice stated that
This is to 'notify all 'employees that the Company has not au-
thorized or approved and takes no responsibility for any states
ments made by either union during the election campaign
currently going on.
AIR 'CONTROL PRODUCTS, INC.,
By (S) L. P. RANDALL.
In a handbill issued shortly after the notice was posted, the Peti-
tioner reprinted the text of the notice with the'following comment:
"It looks like the company union and its phony representative has,
gone far afield in stating what they can get in a new contract. The
2 It is the reiteration of the Intervenor ' s statements , during the period between the first
and runoff elections , that is the basis for our discussion herein , and the preceding events.
are recited and considered only for the light they shed on the subsequent incidents. .
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above notice posted by the Company speaks for itself " The Inter-
venor replied in a handbill distributed shortly before the first election
that, "if you read the notice put on the Bulletin Board by the Com-
pany, and duplicated in the Steelworkers' circular, you will see that
the Company did not state that it had not promised us retroactive
pay " Responding to a question at the hearing, L P Randall,
the Employer's vice president and general manager, testified that the
Employer had at no time promised to give the employees a wage in-
crease or retroactive pay if the Intervenor won the election
In their exceptions the Employer and the Intervenor argue that the
Petitioner had the opportunity to, and did, respond to the Intervenor's
campaign leaflets, and that the Employer's notice adequately dis-
avowed the claim that it promised a wage increase to the Intervenor
and demonstrated to the employees the Employer's neutrality
We disagree In view of the Intervenor's bargaining relationship
with the Employer, the employees reasonably could construe the In-
tervenor's handbill statement to mean that the Employer had promised
the Intervenor that it would grant a retroactive wage increase if the
Intervenor won the election Such a promise of benefit, publicized
by the Intervenor, interfered with the employees' free choice in the
election The Petitioner's opportunity to respond is immaterial, for
a promise of this sort could not be counteracted by an outsider's state-
ments Furthermore it was incumbent on the Employer to neutralize
the effects of the Intervenor's statements by taking affirmative steps
to deny that it had promised a retroactive wage increase if the Inter-
venor won the election This it did not do In our opinion, the Em-
ployer's notice posted before the first election was insufficient for the
purpose I We conclude that the Intervenor's statements, in the cir-
cumstances, interfered with the employees' freedom of choice in the
runoff election 4
Accordingly, we hereby sustain objection 4, and we shall set aside
the election and direct the Regional Director to conduct a new runoff
election 5
8 See Faribo Turkeys, Inc, 140 NLRB 1397, 1399-1400 Cf Fleetwood Trailer Co Inc,
118 NLRB 1368 1356
We note notwithstanding the denial of L P Randall , above referred to that the Em
ployer made any promises to the Intervenor , that the Hearing Officer credited testimony of
the Intervenor 's shop steward Ethel Sickler that 3 or 4 days after the first election she
asked Foreman Hugh Mabe about raises for certain employees in her department and
Mabe replied that "we had to wait and see what happened with the union and that if
Airco Association got in we would get raises but if the Steelworkers got in, we
wouldn ' t get them "
4 Chairman McCulloch would set aside the runoff election on the further ground that
the Intervenor 's statements constituted substantial misrepresentations In his view the
content of the alleged negotiations between the Intervenor and the Employer being within
the exclusive knowledge of the participants thereto rendered impossible any effective re
puttal by the Petitioner See Hollywood Ceramics Company Inc 140 NLRB 221, Radio
Corporation of America ( R CA Victor Division ), 102 NLRB 124
5 We need not , and do not, reach the issues raised by objection No 1
GOODYEAR TIRE & RUBBER CO. (APPLE GROVE PLANT) 1233
[The Board set aside the election.]
[Text of Direction of New Runoff Election omitted from
publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Direction of New Runoff Election.
The Goodyear Tire & Rubber Company (Apple Grove, West
Virginia Plant)' and United Rubber, Cork, Linoleum and
Plastic Workers of America , AFL-CIO and its Local Union
No. 644.2 Cases Nos. 9-RC-4345 and 9-RD-295. June 30, 1964
DECISION AND ORDER DENYING MOTION TO
CLARIFY BARGAINING UNIT
On January 18, 1961, the Union was certified as the bargaining
representative of the Employer's employees in the following unit :
All production employees, including warehouse and laboratory em-
ployees, of the Employer at its Apple Grove, West Virginia, plant, but
excluding office clerical employees, and all professional employees,
guards, and supervisors as defined in the Act.
Since then the parties have executed successive collective-bargaining
agreements covering the employees in the unit, the most recent of
which is currently in effect.
On May 5, 1964, the Employer filed the instant motion seeking to
have the Board clarify the above-described bargaining unit at its
Apple Grove, West Virginia, plant by excluding therefrom employees
in a newly established "pilot plant." The Union filed a motion in op-
position to the Employer's motion, alleging that an arbitrator's award
had issued involving the exact issue and contending that the Board
should, therefore, decline to act.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has considered the above motion and opposition thereto,
and there appears to be no dispute as to the relevant and material
facts. Accordingly, as further corroboration through testimony of
the agreed-on facts would be superfluous, and as the positions of the
parties have been fully stated, the Board has decided to rule on the
questions presented, on the basis of the documents before it.
1 The plant is referred to in some of the pleadings as the Point Pleasant, West Virginia,
plant.
2 Referred to hereinafter as the Union.
147 NLRB No. 162.
756-236-65-vol. 147---79