LOF Glass, Inc.

National Labor Relations Board - Board Decisions

May 9, 1980

249 N.L.R.B. 428 (N.L.R.B. 1980)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOF Glass, Inc. and United Glass & Ceramic
Workers of North America, AFL-CIO, CLC,
Petitioner. Case 11-RC-4751
May 9, 1980
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On November 28, 1979, the Regional Director
for Region 11 issued a Supplemental Decision,
Order, and Direction of Second Election in the
above-entitled proceeding in which he sustained
part of Petitioner's Objection I to conduct affect-
ing the results of an election,' overruled part of
Petitioner's Objection I and its Objections 2
through 9, set the election aside, and directed a
second election. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review on
the ground that the Regional Director erred in
finding merit in Petitioner's Objection I and in set-
ting the election aside. By telegraphic order dated
December 27, 1979, the request for review was
granted.
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.
The Board has considered the entire record in
this case with respect to the issue under review and
hereby affirms the Regional Director for the fol-
lowing reasons. 2
On two occasions, both shortly before the elec-
tion, the Employer read a statement to asssembled
employees regarding the effects of union represen-
tation on certain existing company policies. The
statement alleged that once the Union Petitioner
became the employees' bargaining representative:
. . . the right and the freedom of each of you
to come in and settle matters personally would
be gone. Every employee's affairs would then
be handled by the persons who got themselves
appointed as shop stewards and committee
men for the Union.
The Regional Director, relying primarily on
Robbins & Myers, Inc., 241 NLRB No. 11 (1979),
found that the above was a material misrepresenta-
tion regarding the employees' statutory right to
present their own grievances to their employer
I The tally of ballots for the election showed that of approximately 549
eligible voters 255 cast valid ballots for, and 272 cast valid ballots against,
Petitioner. There were no challenged ballots
2 We affirm the Regional Director's overruling of Petitioner's other
objections, as Petitioner did not request review thereof.
249 NLRB No. 57
without the intervention of the bargaining repre-
sentative. Although Robbins & Myers may be distin-
guishable, we agree with the Regional Director's
conclusion, and his recommendation that, as such
misrepresentation occurred at a time when the
Union did not have an opportunity to make an ef-
fective response, the election should be set aside.3
In Robbins & Myers, the employer told employ-
ees that when a union "comes on the scene the em-
ployees lose all rights for direct communication
with the Company," a somewhat broader statement
than the one made here. 241 NLRB No. 11, sl. op.,
p. 6. Also, in Robbins & Myers, the Board found
that such a misrepresentation, taken together with
other misrepresentations, constituted a proper basis
for setting aside an election, but recognized that
"in some circumstances each of the misrepresenta-
tions made here might not warrant setting aside the
election." 241 NLRB No. 11, sl. op., p. 10. Despite
these differences, we conclude that the Employer's
misrepresentation here is serious enough to have in-
terfered with the employees' free choice.
The Employer maintained an "open door" policy
pursuant to which employees had been permitted
and even encouraged to bring their grievances to
management personally. Employees, according to
the Employer, regularly and frequently availed
themselves of this opportunity. The Employer's
parent corporation, Libbey-Owens-Ford Company,
has a number of collective-bargaining agreements
with Petitioner which contain provisions for griev-
ance procedures requiring the presence of a union
representative when a grievance is presented, and
providing for arbitration. The Employer argues
that its statement was intended to inform employ-
ees that under such contracts its "open door"
policy could no longer exist. Nonetheless, the state-
ment remains a serious misrepresentation of the em-
ployees' right under Section 9(a) of the Act to
present their own grievances and have them adjust-
ed without reference to any contractual procedures
as long as the substance of the adjustment is not in-
consistent with the contract. 4 See Tipton Electric
Company and Professional Furniture Company, 242
NLRB No. 36, ALJD, sec. III,B,l,(a) (1979); Han-
Dee Pak, Inc., 232 NLRB 454, 458-459 (1977).
That employees frequently made use of the Em-
ployer's "open door" policy makes its reputed loss
something that they well could consider a signifi-
a In its request for review, the Employer did not contest the Regional
Director's finding ith respect to the Union's opportunity effectively to
respond.
4 Sec. 9(a) recognizes the compatibility of the employees' right to pres-
ent grievances and the union's opportunity to have a representative pres-
ent.
LOF GLASS, INC. 429
cant reason to reject union representation. 5 In
these circumstances, we find that the misrepresen-
tation made here was at least as serious as that in
Robbins & Myers, and is sufficient to warrant set-
ting aside the election. 6
Accordingly, as we have affirmed the Regional
Director, we shall, and hereby do, remand the case
to him in order that he may conduct the second
election pursuant to his Direction of Second Elec-
tion, except that the payroll period for determining
6 In so finding, we do not decide whether the similar misrepresentation
in Robbins & Myers would have been sufficient standing alone.
eligibility shall be that ending immediately before
the date of this Decision on Review.
MEMBER PENELI.O, dissenting:
For the reasons expressed in my dissenting opin-
ions in Robbins & Myers, Inc., 241 NLRB No. 11
(1979), and General Knit of California, Inc., 239
NLRB 619 (1978), in which I noted that I adhere
to the sound principles enunciated in Shopping Kart
Food Market, Inc., 228 NLRB 1311 (1977), I would
overrule the Union's Objection I and certify the re-
sults of the election.