Candle-Lite, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1970

180 N.L.R.B. 1072 (N.L.R.B. 1970)

1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Candle-Lite, Inc. and International Union of
Operating Engineers, Local No. 20, Petitioner.
Case 9-RC-8035
February 3, 1970
DECISION AND ORDER DIRECTING
HEARING
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election, approved by the Regional
Director on February 20, 1969, an election by secret
ballot was conducted on March 28, 1969, under the
direction and supervision of the Regional Director
for Region 9, among the employees in the unit
described below. At the conclusion of the election,
the parties were furnished with a tally of ballots
which showed that of the approximately 108 eligible
voters, 106 cast ballots, of which 51 were for, 54
against the Petitioner, and I was challenged. The
challenged ballot was insufficient to affect the
results of the election. Thereafter, the Petitioner
filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on July 23, 1969,
issued and duly served on the parties his Report on
Objections, in which he recommended that
objections I and 2 be sustained, and that the March
28, 1969, election be set aside, and a new election be
directed. He further recommended that objections 4
and 5 be overruled. However, in the event that the
Board should fail to agree with his
recommendations as to objections I and 2, the
Regional Director recommended that a hearing be
directed to resolve the issues raised by objection 3.
Thereafter, the Employer filed timely exceptions to
the Regional Director's Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
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 agree, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production, shipping and maintenance
employees of the Employer at its present
locations, Eastern Avenue, Brown Street and
South Street in Leesburg, Ohio, but excluding all
temporary and casual employees and all office
clerical employees, and all guards, professional
employees and supervisors as defined in the Act,
and all other employees.
5. The Board, having considered the Regional
Director's Report and the Employer's exceptions,
hereby adopts the Regional Director's findings and
recommendations' only to the extent consistent
herewith.
Objection I alleged that the Employer made a
material and substantial misrepresentation which the
Petitioner had inadequate opportunity to refute.
The objection is based on a letter sent by the
Employer to all its employees, found by the
Regional Director to have been postmarked March
27, 1969, the day before the election. It was received
by some employees on March 27 and by other
employees on March 28. The letter stated, in
pertinent part: "The union wants to charge you $6 a
month - going to $8 this June just to talk for
you. This is at least $72 a year."
Investigation by the Regional Director revealed
that although initially the Petitioner had told the
employees that it planned to raise the dues in March
1969, to $8, the Petitioner later decided that for
"total plant units", like that at Candle-Lite, the
dues would remain at $6 per month. The employees
were informed of this development at a meeting on
March 11, 1969, and again at another meeting on
March 22, 1969, some 6 days before the election.
The Regional Director concluded that the
statement in the letter with respect to an increase in
union dues constituted a misrepresentation, and that
such misrepresentation was of a material fact, that
such fact was within the special knowledge of the
misrepresenting party, and that the
misrepresentation was made so shortly before the
election that the Petitioner did not have time to
refute it. Accordingly, relying on Hollywood
Ceramics Company, Inc., 140 NLRB 221, and
distinguishing the case from that of York Furniture
Corporation, 170 NLRB No. 169, the Regional
Director recommended that this objection be
sustained. In arriving at this conclusion he relied, in
major part, on the plant manager's admission that
he had learned from an employee, prior to mailing
the letter, that the Petitioner did not plan to raise its
dues for Candle-Lite employees, that a supervisor of
the Employer had assured employees during the
Union campaign that anything written under the
Employer's aegis could be accepted as the truth, and
that since the Petitioner only learned about the
letter on the afternoon of the day before the election
it had insufficient time to print a reply. We disagree
' In the absence of exceptions thereto, we adopt, pro forma , the Regional
Director's recommendation that objections 4 and 5 be overruled
180 NLRB No. 167
CANDLE-LITE, INC. 1073
with the Regional Director ' s conclusion as to
Objection 1.
In the York Furniture case the Board , overruling
the Regional Director , concluded that an employer's
statement in a letter that union dues were to be
raised from $5 per month to $7.50 per month was
not objectionable . The Board said, in pertinent part*
We regard the statement in issue as one based
not on the Employer ' s own knowledge but rather
on hearsay . Whether or not a dues increase was in
the offing was a matter within the knowledge of
the Petitioner , and it is reasonable to suppose
that , before accepting as fact the Employer's
second -hand account , the employees would have
inquired of the Petitioner itself as to the matter.
And it was found that the employees had the
opportunity to make such inquiry of the Petitioner.
As in the York decision , we must conclude that
the Employer' s statement regarding dues was not
based on its own knowledge ; whether a dues
increase was in the offing was a matter within the
special knowledge of the Petitioner . Although the
time span between the sending of the letter and the
election in the present case is shorter than in York,
evidence reveals that the Petitioner had taken great
pains to acquaint the employees with their dues
program immediately prior to the election . It further
appears, that upon being apprised of the letter,
Petitioner 's representatives orally notified many of
the employees of the true state of the Union dues as
they were leaving the plant the day before the
election . Indeed , if doubt remained there was a
reasonable time lapse in which an employee could
inquire from the Petitioner itself as to the matter.
Clearly, in these circumstances , the employees could
reasonably evaluate the statement regarding the
planned dues increase , and its impact , in our view,
was not such as would warrant setting aside the
election .' Consequently , objection I is overruled.
The Petitioner ' s objection 2 alleged that the
Employer locked the doors of its plant on the
election day , and thereby discouraged employees
from going in to vote and created confusion and
uncertainty . Evidence was adduced to show that the
normal employee entrance was locked on the
afternoon of the election , and in order for employees
to gain access to the plant some had to walk around
to the front entrance which was found by at least
one employee to be also locked. Although a
considerable number of employees may have
experienced some difficulty in entering the plant to
vote , the official tally of ballots shows that virtually
'Hollywood Ceramics Company, Inc. supra
all of the eligible employees voted . Significantly,
there is no showing that any employee was
precluded from voting because the doors through
which they normally reported for work were locked.
The Regional Director recommended that the
objection be sustained . The Employer' s action in
locking the employees ' entrance , he concluded, was
likely to create confusion and uncertainty in the
minds of the employees . It also forced the
employees to pass supervisory offices not normally
passed by employees as they entered the plant, and,
in at least one instance , the door at the front of the
plant was opened by a supervisor.
We disagree with the Regional Director . Although
some confusion may have occurred , the Employer's
conduct here is not sufficient to warrant setting
aside of the election . The mere fact that these
employee voters would be required to pass by the
offices of supervisors and that one employee gained
entrance through the front door by having it opened
by a supervisor , in our view was not sufficient to
create an atmosphere of such confusion and
uncertainty as to interfere with the "laboratory
conditions" which the Board requires in the conduct
of elections . We therefore overrule objection 2.
Inasmuch as objections I and 2 have been
overruled , and no exceptions have been filed to the
Regional Director ' s recommendation that a hearing
be held to resolve issues arising from objection 3, we
shall order such a hearing be held to resolve the
issues arising from objection 3. Accordingly,
IT IS HEREBY ORDERED that a hearing be held,
before a Hearing Officer to be designated by the
Regional Director for Region 9, for the purpose of
taking testimony to resolve the issues raised by the
Petitioner 's objection 3.
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting such
hearing shall 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 . Within 10 days from the date of
issuance of such report , either party may file with
the Board in Washington , D. C., an original and
seven copies of exceptions thereto. Immediately
upon the filing of such exceptions , the party filing
the same shall serve a copy on the other party, and
shall file a copy with the Regional Director. If no
exceptions are filed thereto , the Board will adopt the
recommendations of the Hearing Officer.
IT IS FURTHER ORDERED that the above -entitled
matter be, and it hereby is, referred to said Regional
Director for the purpose of conducting such hearing,
and that the Regional Director be, and he hereby is,
authorized to issue notice thereof.