Lake Superior District Power Co.

National Labor Relations Board - Board Decisions

Jan 12, 1979

239 N.L.R.B. 1275 (N.L.R.B. 1979)

LAKE SUPERIOR DISTRICT POWER COMPANY
Lake Superior District Power Company and Interna-
tional Brotherhood of Electrical Workers, Local
953, AFL-CIO, Petitioner. Case 18-RC- 11885
January 12, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 18 on June 9, 1978, an election by secret
ballot was conducted on June 28, 1978, among the
employees in the appropriate unit. At the conclusion
of the balloting, the parties were furnished a tally of
ballots which showed that of approximately 186 eligi-
ble voters, 185 cast valid ballots, of which 87 were for
and 97 were against the Petitioner, with I challenged
ballot. The challenged ballot was insufficient in num-
ber to affect the results of the election. On July 5,
1978, the Petitioner filed timely objections to con-
duct affecting the results of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
an investigation of the objections was conducted,
and on August 21, 1978, the Regional Director issued
an order directing hearing for the purpose of taking
evidence on certain issues raised by the objections.
The Hearing Officer was further ordered to prepare
and cause to be served on the parties a report con-
taining resolutions of credibility of witnesses, find-
ings of fact, and recommendations to the Board as to
the disposition of said issues.
Pursuant to the Regional Director's order, a hear-
ing was held on September 6, 1978, before Hearing
Officer James L. Fox. All parties appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, to adduce evidence
bearing upon the issues, and to file briefs with the
Hearing Officer at the close of the hearing.
On September 29, 1978, the Hearing Officer issued
and served on the parties his report, recommending
that the Board overrule Petitioner's objections in
their entirety and that a certification of results issue
based on the election outcome as reflected by the
tally of ballots. Thereafter, Petitioner filed timely ex-
ceptions with a supporting brief, and the Employer
filed a reply brief in support of the Hearing Officer's
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses 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 concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(cXI) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production, maintenance and service em-
ployees employed at Employer's Wisconsin and
Michigan facilities in the generation (hydro and
steam) gas and electric divisions; excluding all
office clerical employees, professional and man-
agerial employees, guards and supervisors as de-
fined in the Act.
5. The Board has considered the entire record in
this case, including Petitioner's objections, the Hear-
ing Officer's report, Petitioner's exceptions and sup-
porting brief, and Employer's reply brief, and hereby
adopts the Hearing Officer's findings and recommen-
dations only to the extend consistent herewith.'
The Hearing Officer recommended that
Petitioner's Objection 2 be overruled. This objection
alleged that a representative of a company with
which the Employer planned to merge told a group
of employees that it would take 30 percent of Peti-
tioner's entire membership of approximately 1,500
individuals to obtain a decertification election in the
event that Petitioner won the election. The Hearing
Officer found that on June 26, 1978, 2 days before
the election, Richard T. Kellington, a representative
of Northern States Power Company, participated in
several meetings that the Employer held for its em-
ployees. The Hearing Officer credited testimony that
at the meetings at the Employer's Ashland and Iron-
wood plants, Kellington made statements, some in
response to employee questions, that, if the Employer
and Northern States Power Company merged, a de-
In adopting the Hearing Officer's recommendation to overrule Petition-
er's Objection I. which alleged that a supervisor threatened an employee
with layoff if the empltoyee voted for Petitioner in the election. we do not
adopt the Hearing Officer's suggestion that the absence of actual authonty
hb the superisor to effect a la)off or the fact that the supervisor had no
know ledge of what would occur at a meeting. which he urged the employee
in question to attend. supports or compels such a result Rather. In agree-
ment with the Hearing Officer. we find that. in the context of the conversa-
tlon in which it was uttered, the super:lisor's reference to a layoff did not
constitute a threat
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification vote would require a majority of all
IBEW Local 953's members. The Hearing Officer
concluded that these statements, although misrepre-
sentations, were not a basis for setting aside the elec-
tion despite the fact that the misrepresentations were
made 2 days before the election and that the misrep-
resentations led at least some employees to conclude
that, because of National Labor Relations Board
rules concerning voter eligibility, it would be more
difficult to vote the Petitioner out than it would be to
vote the Petitioner in.2
Contrary to the Hearing Officer, we conclude that
the statements made at the Employer's meetings at
Ashland and Ironwood, concerning the mechanics of
a decertification vote, constituted misleading repre-
sentation of the law which warrants setting aside the
election. See K-F Products, Inc., 170 NLRB 366
(1968). We note also that the misrepresentation in-
volved a matter of some evident concern to employ-
ees, particularly in view of the proposed merger and
its possible impact on employees' representational
2 In declining to set aside the June 28. 1978. election, because of the
misrepresentations, the Hearing Officer relied on Shopping Karl Food Mar-
ket. Inc., 228 NLRB 1311 (1977). a decision which has since been overruled
by the Board. See General Knit of California, Inc.. 239 NLRB 619 (1978).
rights and interests, and that the misleading state-
ments were made at a time that allowed petitioner
little or no time for an effective reply. See, generally,
Hollywood Ceramics Company, Inc., 140 NLRB 221
(1962). Accordingly, we shall set aside the June 28,
1978, election and direct that a second election be
held.
ORDER
It is hereby ordered that the election conducted
herein on June 28, 1978, be, and it hereby is, set aside
and a direction of second election be conducted as
set forth below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER PENELLO, concurring in part and dissenting
in part:
I join the majority in overruling Petitioner's Objec-
tion 1. With regard to Petitioner's Objection 2, I be-
lieve that the Hearing Officer properly concluded
that it should be overruled under Shopping Karl Food
Market, Inc., 228 NLRB 1311 (1977). See my dissent-
ing opinion in General Knit of California, Inc., 239
NLRB 619 (1978). Accordingly, I would certify the
results of the election.
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