Pointe Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 747 (N.L.R.B. 1975)

POINTE ENTERPRISES , INC. 747
Pointe Enterprises, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), Petition-
er. Case 7-RC-12258
February 26, 1975
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on March 7, 1974, an
election by secret ballot was conducted on April 24,
1974, under the direction and supervision of the
Regional Director for Region 7 among the employ-
ees in the stipulated unit . At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that, of approximately 13
eligible voters, 10 cast ballots, of which 8 were for
and 2 against the Petitioner, and none were chal-
lenged. Thereafter, the Employer filed timely objec-
tions to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on July 26,
1974, issued and duly served on the parties his report
and recommendations on objections, in which he
recommended that the objections be overruled in
their entirety and that a certification of representa-
tive issue. Thereafter, the Employer filed timely
exceptions to the Regional Director's report and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding 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 concern-
ing 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 stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All technical employees employed by the Em-
ployer at its facility located at 20655 Mack
Avenue, Grosse Pointe Woods, Michigan; but
excluding all confidential employees, co-op stu-
dents, managerial employees, office clerical em-
ployees, production and maintenance employees,
guards, supervisors and professional employees as
defined in the Act and all other employees.
5. The Board has considered the Employer's
objections, the Regional Director's report, and the
exceptions thereto, and hereby adopts the Regional
Director's findings and recommendations for the
reasons set forth below.
The Employer's objections in essence claim that
the Petitioner at the preelection meetings it conduct-
ed and in two letters sent to its employees' on
February 4 and April 15, 1974, made material
misrepresentations of fact which interfered with the
election conducted on April 24, 1974.
The first letter informed employees in pertinent
part that:
Our original goal has not changed-we still
intend to organize All the Detroit-area shops.
Contracts will not be in force until we do. The total
number of employees in this first group of 48
shops is 1,635 or about 67% of the total Detroit-
area design work force.
The second letter in pertinent part stated that:
We have no desire to run anyone out of business,
and certainly no desire to put our own union
members out of a job . . . even if elections are
won and a union is certified in a shop, there will
be no contract until the great majority of the Job
Shop Industry has voted for the union. By a great
majority, we mean at least 70%, which is about
2,000 employees in our industry. We will hold to
this even if it means temporary loss of certifica-
tion in some shops already won.
The statements were made in response to representa-
tions by various employers that they would be placed
in a noncompetitive position if their employees
selected the Petitioner as their bargaining representa-
tive while employees of other employers did not.
We agree with the Regional Director that the
various representations made by Petitioner to the
employees afford no basis for finding that Petitioner
interfered with the election conducted on April 24,
1974. The statements made by Petitioner concerning
its prospective procedures for conducting orderly
negotiations and making contracts effective at
I Petitioner conducted an overall election campaign directed at all Metropolitan Detroit area. No special electioneering drive was directed
employees of 48 employers in the tool-and-die industry in the Greater solely at the Employer's tool-and-die employees.
216 NLRB No. 131
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular times in as many as 48 shops in Detroit's
tool-and-die industry are not misrepresentations
within the meaning of Hollywood Ceramics Company,
Inc., 140 NLRB 221 (1962).2 Further, the representa-
tions made by Petitioner were in response to
employer statements that particular shops might be
placed in a noncompetitive situation by the organiza-
tion of selected individual employers by Petitioner,
the obvious implication being that employees' jobs in
such shops would be placed in jeopardy. We find
that the Petitioner's representations were speculative
in nature and merely reflected its hoped-for bargain-
ing position after the election. It is evident that
Petitioner's response to a firm bargaining demand
from a particular employer cannot be gleaned from
its representations but must rest on the realities of
the moment when the demand is made. Finally, the
Employer contends that employees may have more
readily voted for Petitioner while musing to them-
selves that their vote would have little immediate
effect. We will not undertake a search into such
subjective considerations where employees have
heard both parties and cast their ballots after
appraising the merits of the election campaign. No
election interference is found based on any of the
Employer's objections.3
Accordingly, as we have overruled the objections in
their entirety, and as a majority of the valid ballots
have been cast for the Petitioner, we shall certify the
Petitioner as the exclusive bargaining representative
of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
organizing campaign was directed by Petitioner
solely at such employees. Rather Petitioner conduct-
ed an overall election campaign directed at approxi-
mately 1,600 technical (tool-and-die) employees of
some 48 employers in the Greater Metropolitan
Detroit area. In the course of this campaign
Petitioner, in letters sent to all Detroit area tool-and-
die employees, informed them that ". . . we still
intend to organize All the Detroit-area shops.
Contracts will not be in force until we do"; and that
there will be no contract until the great
majority of the Job Shop Industry has voted for the
union . . . . We will hold to this even if it means
temporary loss of certification in some shops already
won."
My colleagues conclude that the above-quoted
statements did not interfere with and do not warrant
setting aside the election. I do not agree . According-
ly, I would set aside the election.
In my view the present proceeding presents a
rather basic policy issue. The issue is whether the
Board should certify a labor organization where the
labor organization has stated that it does not intend
to bargain in good faith for the unit for which it
would be certified. Petitioner's representations in the
present case conditioned bargaining and execution of
any contract about terms and conditions of employ-
ment in the stipulated unit upon the successful
culmination of its metropolitan areawide organizing
effort among other tool-and-die units in Detroit. In
Pittsburgh Plate Glass,4 the Supreme Court analyzed
the statutory provisions dealing with an employer's
collective-bargaining obligation and concluded as
follows:
It is hereby certified that a majority of the valid
ballots have been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all the
employees in the unit found appropriate herein for
the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
conditions of employment.
MEMBER KENNEDY, dissenting:
The present case arises in Detroit's tool-and-die
industry. It directly involves only the Employer's
approximately 13 tool-and-die employees. No special
2 In any event, the Employer learned of the Petitioner 's statements at
least 4 and perhaps 9 days before the election, and thus had adequate time
to respond and meet the Petitioner's assertions.
3 Our dissenting colleague contends that this election should be set aside
to insure evenhanded administration of the Act. Attempting to put the shoe
on the other foot by comparing the Union's campaign rhetoric here with an
assumed employer statement that it would not sign a contract with a union
until the union organized 70 percent of the industry, he fails to say whether
Together, these provisions establish the obliga-
tion of the employer to bargain collectively, "with
respect to wages, hours, and other terms and
conditions of employment," with "the representa-
tives of his employees" designated or selected by
the majority "in a unit appropriate for such
purposes." This obligation extends only to the
"terms and conditions of employment" of the
employer's "employees" in the "unit appropriate
for such purposes" which the union represents.
Section 8(b)(3), in my view, imposes the same
obligation upon Petitioner to bargain in good faith in
the unit appropriate for collective bargaining.
Here the parties have stipulated that the appropri-
the union in his example won the election . If it did , we would not set aside
because of an employer statement of that sort any more than we do here
Such statements are indeed calculated to make a union lose, as this Hearing
Officer concluded, but if they do not have that effect, there is no reason to
set the election aside The employees have heard the anticipated negotiating
position and were not dissuaded.
4 N.L.R.B. v. Pittsburgh Plate Glass Co., Chenucal Division, et al., 404
U.S. 157, 164 (1971), affg. 427 F.2d 936 (C.A. 6, 1970).
POINTE ENTERPRISES , INC. 749
ate unit is limited to technical (tool-and-die) employ-
ees employed by the Employer at its Grosse Pointe
Woods, Michigan, facility. The Petitioner has told
the employees that, even if it is certified, it will accept
no offer nor execute an agreement in this unit until it
is selected as the bargaining agent in numerous other
units . In Utility Workers Union of America,5 the
Board affirmed long standing Board law that such
behavior violates the Act. In that case the Board held
that a union violated Section 8(b)(3) when it
threatened that no offer with respect to the unit
would be accepted or submitted to ratification until
concurrent offers had been made for all of the other
units.
There is no doubt in my mind that, if the Employer
had stated to employees that it would not sign a
contract with a union until it had organized 70
percent of the industry, this Board would have no
difficulty in setting aside the election. The Board has
recently been reminded about the need for vigilance
in assuring an evenhanded application of the statute,
and that what is "sauce" for one party should be
"sauce" for the other. See Wilkinson Manufacturing
Company v. N. L. R. B., 456 F.2d 298 (C.A. 8, 1972);
Automated Business Systems v. N.L.R.B., 497 F.2d
262 (C.A. 6, 1974). The principle is one I would apply
fully in the present proceeding.
If Petitioner did not intend to fulfill its promise to
delay execution of a contract until it organized other
shops in Detroit, then it clearly committed a material
misrepresentation of a matter within the special and
exclusive knowledge of the Petitioner which warrants
setting aside the present election. According to the
Regional Director's investigation of the objections,
as of the date of the election, the Petitioner had lost
or withdrawn from 31 elections covering some 820
employees, while winning only 9 elections covering
some 200 employees. Since the remaining elections
encompassed only 540 employees pursuant to the 48
petitions filed, it was impossible for the Petitioner to
achieve its announced goal of organizing at least 70
percent of the employees in the industry. If Petitioner
should seek a contract in the unit certified by my
colleagues, then obviously it follows that Petitioner
has falsely induced the employees to vote for it on
the assumption that it would not. Petitioner's letters
compel a finding that Petitioner has interfered with
the laboratory conditions and that this election must
be set aside .6
In my opinion, the Board should not issue a
certification because of Petitioner's preelection state-
ments that it would refuse to negotiate or execute a
contract in the stipulated unit until such time as the
Petitioner had organized the great majority of tool-
and-die employers in the Detroit area. If Petitioner
honors its commitment to the employees that it
would not seek a bargaining agreement until it
organizes 70 percent of the employees, no useful
purpose is served in issuing the certification. The
employees, however, will be deprived of the opportu-
nity to select another bargaining agent for 12 months
under Section 9(c)(3) of the Act. If Petitioner reneges
on its commitment and seeks a contract, then the
certification will have been procured by misrepresen-
tation. In either event, the election should be set
aside and a new one directed.
5 Utility Workers Union of America, AFL-CIO, et al , 203 NLRB 230
(1973). See The Standard Oil Company, 137 NLRB 690, enfd . 322 F.2d 40
(C.A.6, 1%3).
6 1 certainly do not view Petitioner 's statements as speculative in nature
in view of the obvious impact that metropolitan areawide bargaining could
have in the numerous shops the Petitioner is seeking to organize.