Jamak, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1979

239 N.L.R.B. 1274 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jamak, Inc. and United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, CLC, Peti-
tioner. Case 16-RC-7777
January 12, 1979
ORDER DIRECTING HEARING
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 16 of the
National Labor Relations Board on August 15, 1978,
an election by secret ballot was conducted in the
above-entitled proceeding on September 27, 1978,
under the direction and supervision of the said Re-
gional Director.
The tally of ballots shows that there were approxi-
mately 113 eligible voters and that 103 ballots were
cast, of which 63 were cast for and 40 were cast
against the Petitioner. There were no challenged bal-
lots.
On October 4, 1978, the Employer filed timely ob-
jections to the election. The Regional Director con-
ducted an investigation of the issues raised by the
objections and, on November 3, 1978, issued and
duly served on the parties his Report on Objections.
In his report, the Regional Director recommended
that the Board overrule the objection and issue a cer-
tification of representative. Thereafter, on November
14, 1978, the Employer filed exceptions to the Re-
gional Director's disposition of its objection. In its
exceptions, the Employer asserts that in a letter to
employees postmarked September 23, 1978, 4 days
before the election, Petitioner told employees that it
had in its possession a copy of a contract covering
employees at the Employer's facility in Michigan.
The Employer claims that Petitioner stated that, pur-
suant to this contract, the Michigan employees were
covered by a pension program; that their wage rates
ranged from $4.21 to $5.86 per hour; and that wages
progressed to a top rate in 60 days. The Employer
contends that these statements constituted a misrep-
resentation of fact, which had a coercive impact on
its employees. In this connection, the Employer relies
on the provisions of a contract which it claims is the
only contract it has ever executed.
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.
Having duly considered the matter, we are of the
opinion that the Employer's exceptions raise a mate-
rial factual issue of whether Petitioner's letter of Sep-
tember 23, 1978, did, in fact, contain material mis-
representations of fact.'
Accordingly, it is hereby ordered that a hearing be
held before a duly designated Hearing Officer for the
purpose of receiving evidence to resolve the issues
raised by the Employer's exceptions, as noted above.
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting such hear-
ing shall prepare and cause to be served on the par-
ties 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 the time prescribed by the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, any party may file with the Board in
Washington, D.C., eight copies of exceptions thereto.
Immediately upon the filing of such exceptions, the
party filing the same shall serve a copy thereof on
each of the other parties 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 mat-
ter be, and it hereby is, referred to the Regional Di-
rector for Region 16 for the purpose of arranging
such hearing and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
MEMBER PENELLO. dissenting:
I would not remand this case for a hearing. As I
noted in my dissenting opinion in General Knit of
California, Inc., 239 NLRB 619 (1978), 1 adhere to
the sound principles of Shopping Karl Food Market,
Inc., 228 NLRB 1311 (1977). Accordingly, as recom-
mended by the Regional Director, I would overrule
the Employer's objection and certify the Union.
'In reaching his decision. the Regional Director specifically relied on
Shopping Kart Food Markel. Inc. 228 NLRB 1311 (1977). However, Shop-
ping Karl 'as recently overruled by the Board in General Knit of California,
Inc., 239 NLRB 619 (1978) In directing a hearing on the Employer's ex-
ceptions. (hairman Fanning and Member Truesdale note that the present
record is insufficient upon which to render a decision pursuant to the princi-
ples set forth in General Knit
1274