K-F Products, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 366 (N.L.R.B. 1968)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-F Products, Inc, and International Association of
Machinists and Aerospace Workers and Its Dis-
trict Lodge No. 86, AFL-CIO, Petitioner. Case
27-RC-3244
March 15, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By MEMBERS FANNING, JENKINS, AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election executed by the parties on June
20, 1967, an election by secret ballot was con-
ducted in the above-entitled proceeding on July 11,
1967, under the direction and supervision of the
Regional Director for Region 27 (Denver,
Colorado). Upon the conclusion of the election, a
tally of ballots was furnished the parties, in ac-
cordance with National Labor Relations Board
Rules and Regulations.
The tally of ballots shows that there were approx-
imately 173 eligible voters and that 129 ballots
were cast, of which 32 were for the Petitioner, 96
were against the Petitioner, and 1 was void.
On July 18, 1967, the Petitioner filed timely ob-
jections to the' conduct of the election and conduct
affecting the, results of the election. The Regional
Director caused an investigation of the objections
to be made and, thereafter, on October 11, 1967,
issued and served on the parties his report and
recommendations on objections to election. In his
report, the Regional Director concluded that the
Petitioner's objections in paragraphs one through
four and six and seven, as set forth in the section of
his report entitled "The Objections," lack merit
and recommended to the Board that those objec-
tions be overruled. He further concluded that the
objection in paragraph five had merit, and recom-
mended that it be sustained and that the election be
set aside. Alternatively, in the event the latter
recommendation was not adopted, the Regional
Director recommended that a hearing be held to
resolve the credibility issue raised with respect to
the wage increases given by the Employer after the
filing of the petition.
Thereafter, on October 16, 1967, the Employer
filed timely exceptions to the Regional Director's
report with respect to the objections in paragraph
five, and ^ that portion of the Regional Director's
recommendations that a Hearing Officer resolve
the credibility issue raised by the wage increases,
requesting that a hearing be held to permit the Em-
ployer an opportunity to present evidence in sup-
port of its position. No other exceptions were filed.
The Board issued an order directing a hearing on
November 15, 1967, in which it adopted, pro for-
170 NLRB No. 41
ma, the Regional Director's recommendation that
the Petitioner's objections in paragraphs one
through four and six and seven, be overruled,
reserved ruling on the Regional Director's recom-
mendations as to paragraph five, and ordered that a
hearing be held for the purpose of receiving
evidence to resolve the credibility issue raised by
the wage increases given by the Employer sub-
sequent to the filing of the petition.
It was further ordered that the Hearing Officer
designated to conduct such a hearing should
prepare and cause to be served on the parties a re-
port containing resolutions of credibility of wit-
nesses, findings of fact, and recommendations to
the Board as to the disposition of said issues.
Pursuant to the Board's Order, a hearing was
held on December 6, 1967, before Hearing Officer
J. Donald Meyer. All parties participated and were
given full opportunity to examine and cross-ex-
amine witnesses and to introduce evidence bearing
on the issues. On December 19, 1967, the Hearing
Officer issued and duly served on the parties his re-
port, in which he recommended that the objection
with respect to the merit increases be overruled. He
further recommended that the Board proceed to
issue its ruling on the Regional Director's recom-
mendations as to paragraph five of the Petitioner's
objections. No exceptions were filed to this report.
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
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 claming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all
production and maintenance employees employed
at the Employer's plants located at 2360 Industrial
Lane, Broomfield, Colorado, and 3100 East 43rd
Avenue, Denver, Colorado, excluding all office
clerical employees, salesmen, professional em-
ployees, draftsmen, guards, and supervisors as
defined in the Act, constitute a unit for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
5. The Board has reviewed the rulings made by
the Hearing Officer at the hearing and finds that no
K-F PRODUCTS, INC.
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's report, the Regional Director's
report on objections and the exceptions thereto,
and the entire record in the case, and hereby
adopts the Regional Director's conclusions and
recommendation that the Petitioner's objection in
paragraph five be sustained and that the election be
set aside.
Petitioner's objection is "That Company sent out
misleading propaganda to employees which Peti-
tioner had no opportunity to answer." The Re-
gional Director found that the Employer mailed a
letter to all employees on July 7, 1967, which in the
normal course of business would be received by the
employees on Saturday, July 8, 1967.
In this letter, among other campaign propaganda,
were seven questions and answers. The last
question was: "If the Union wins and for some
reason I am expelled from the Union, would I lose
my job at K-F?" The answer was "Yes, if the con-
tract provided for a Union shop or maintenance of
' 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 27 within 7 days after the date of this Decision and Direction of
Election. 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
367
membership." This answer is a misleading represen-
tation of the law. Although there are many reasons
for which a union can expel a member, expulsion
for other than nonpayment of dues or initiation fees
can not lawfully affect job tenure. Inasmuch as the
Petitioner did not become aware of this misstate-
ment until Monday, July 10, 1967, the day before
the election, an effective -reply was impossible. Ac-
cordingly, we shall set aside the election of July 11,
1967, and direct that a second election be held.
ORDER
It is hereby ordered that the election conducted
herein on July 11, 1967, among the employees of
K-F Products, Inc., at its Bloomfield, Colorado, and
Denver, Colorado, establishments, be, and it hereby
is, set aside.
[Direction of Election' omitted from publica-
tion.]
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 Excelsior Underwear Inc., 156 NLRB
1236