The Aire-Flo Corp.

National Labor Relations Board - Board Decisions

Oct 4, 1967

167 N.L.R.B. 679 (N.L.R.B. 1967)

THE AIRE-FLO CORP. 679
The Aire -Flo Corporation and Sheet Metal Work-
ers' International Association , Local 98,
AFL-CIO, Petitioner . Case 9-RC-7194
October 4, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING,JENKINS, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted in the above-entitled proceeding or
April 28, 1967, under the direction and supervision
of the Regional Director for Region 9 among the
employees in the appropriate unit. At the conclu-
sion of the balloting, the parties were furnished a
tally of ballots, which showed that of approximately
21 eligible voters, 21 cast valid ballots, of which 12
were for, and 9 were against, the Petitioner. No bal-
lots were challenged. There were no void ballots.
Thereafter, the Employer filed timely objections to
the election and to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Acting Regional Director conducted an in-
vestigation and on July 24, 1967, issued and duly
served upon the parties his Report on Election, Ob-
jections to Election, and Recommendations to the
Board, in which he recommended that the objec-
tions be overruled in their entirety and that the
Union be certified as bargaining representative of
the employees involved. Thereafter, the Employer
filed timely exceptions to the Acting Regional
Director'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
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 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 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 following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of the Employer excluding all
office clerical employees, salesmen, and all
guards, professional employees, and super-
visors as defined in the Act.
5. The Board has considered the Acting Re-
gional Director's report, the Employer's excep-
tions, and the entire record in this case, and hereby
makes the following findings:
On April 26, 1967, 2 days before the election,
Lincoln Baird, business agent and financial secre-
tary of the Petitioner, held a meeting at the union hall
attended by 19 of the Employer's 21 employees.
The Employer's objections refer to statements al-
legedly made by Baird to employees at this meeting.
In Objection 1, the Employer alleges that Baird fal-
sely represented that the Employer's attorney was
a personal friend of Baird and had spoken in favor
of the Petitioner. In Objection 2, the Employer al-
leges that, at the aforesaid meeting, Baird quoted a
customer of the Employer as saying that his firm
would cease doing business with the Employer if
the Employer's employees did not vote for the Peti-
tioner in the election on April 28, 1967. The Em-
ployer further alleges that these statements were
made at a time so close to the election, they could
not be effectively rebutted.
We are unable to agree with the Acting Regional
Director's conclusion that the employees' freedom
of choice was not sufficiently impaired by the state-
ment complained of in Objection 2 to warrant
setting aside the election. Witnesses made available
by both Employer and Petitioner substantiate the
allegation that Baird made the statement set forth in
Objection 2. A statement made 2 days before the
election that the Employer, and hence his em-
ployees, were going to lose work from a customer'
if the Union was not elected, had to be a material
and substantial consideration in the election. A
statement of this nature impairs the free and in-
formed atmosphere requisite to the employees' un-
restrained expression of choice at the ballot box.
This is particularly true when, as here, the em-
ployees are required to evaluate an unsubstantiated
assertion based upon a remark allegedly made by an
unidentified representative of one of the Em-
ployer's customers and at a time when no response
was possible.
In the circumstances of this case, we hereby
sustain the Employer's Objection 2. Accordingly,
' The Employer alleges that the customer was a major one. The Acting
Regional Director does not make any determination on this issue
167 NLRB No. 145
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we shall set aside the election and direct that a [Direction of Second Election2 omitted from
second election be held. publication. ]
ORDER
It is hereby ordered that the election conducted
herein on April 28, 1967, be, and it hereby is, set
aside.
P 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 9 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election No ex-
tension of time to file this list shall be granted by the Regional Director ex-
cept in extraordinary circumstances Failure to comply with this require-
ment shall be grounds for setting aside the election whenever proper ob-
jections are filed Excelsior Underwear Inc, 156 NLRB 1236