The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Aug 13, 1974

212 N.L.R.B. 852 (N.L.R.B. 1974)

852 DECISIONS OF NATIONAL
The Firestone Tire & Rubber Company and Interna-
tional Union , United Plant Guard Workers of Amer-
ica (UPGWA), Petitioner . Case 26-RC-4728
August 13, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY. AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and ap-
proved by the Regional Director for Region 26 of the
National Labor Relations Board on April 1, 1974,l an
election by secret ballot was conducted on April 24
and 25, under the direction and supervision of said
Regional Director among certain employees of the
above-named Employer in the unit set forth below.
Upon the conclusion of the balloting, the parties were
furnished with a tally of ballots, which shows that, of
approximately 13 eligible voters, 13 ballots were cast,
of which 7 were for, and 6 were against, the Petitioner.
There were no challenged ballots. Thereafter, on
April 30, the Employer timely filed and duly served
objections to conduct affecting the results of the elec-
tion.
The Regional Director caused an investigation con-
cerning the objection to be made and, on May 23, the
Acting Regional Director issued and duly served on
the parties his Report on Objections. In his report, the
Acting Regional Director concluded that both
Employer's Objections I and 2 raised material and
substantial issues and recommended that a hearing be
held for the purpose of resolving those issues. There-
after, the Petitioner filed timely exceptions, with a
supporting memorandum.
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:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
pose 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 the employees of the Em-
ployer within the meaning of Section 9(c)(l) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
1 Hereinafter all dates refer to 1974
LABOR RELATIONS BOARD
purpose of collective bargaining within the meaning
of Section 9(b) of the Act:
All safety-security inspectors employed by the
Employer at its La Vergne, Tennessee operation;
excluding all other employees, including office
clerical and supervisors , as defined in the Act.
5. The Board has considered the Acting Regional
Director's report, the Petitioner's exceptions and
memorandum, and the entire record in this case, and
hereby affirms the Acting Regional Director's find-
ings, conclusions, and recommendations only to the
extent consistent herewith.
The Employer's objections concern statements al-
legedly made by Jack Russell, Petitioner's representa-
tive, while presiding over a union meeting held the
night before the unit election and attended by several
eligible voters. Objection 1 alleges that Russell stated
that "all collective bargaining contracts which the Pe-
titioner had negotiated provided that security guards
could transfer into manufacturing positions at the re-
spective plants, and, if desired, return to the guard
unit without loss of seniority." (Emphasis supplied.)
Since the Employer alleged that two contracts be-
tween it and the Petitioner at other plant locations
contained no such transfer provision, the Employer
objects to the alleged material misrepresentation
made with reference to an allegedly important cam-
paign issue at a time when it could not effectively
respond.
The Acting Regional Director's investigation dis-
closed no evidence that the alleged misrepresentation
or any other material misrepresentation was made
regarding security guard transfers. Viewed in a light
most favorable to the Employer, the testimony of all
four witnesses, including Russell, indicated only that
Russell said some contracts negotiated by the Peti-
tioner at other plants (not limited to those of the Em-
ployer) provided for transfer from the security unit to
otherjobs, but any transferee returning to the security
unit would lose his seniority within that unit. Morever,
in our view, there is no material difference between
three witnesses' versions of Russell's statement at the
meeting that the Petitioner had negotiated transfer
provisions in some past contracts and Russell's own
testimony that he told the employees that such provi-
sions were not ordinary inclusions in Petitioner's bar-
gaining agreements. We therefore find that the
Employer has failed to introduce prima facie proof of
misrepresentation as actually alleged in its Objection
1. We further find the Employer has failed to show
that among Petitioner's contracts those containing
212 NLRB No. 125
THE FIRESTONE TIRE & RUBBER CO.
transfer clauses were extraordinarily and dispropor-
tionately few; given those circumstances, we still find
no evidence that Russell's statement to the employees
materially misrepresented such contracts as ordinary.
Therefore, we find, contrary to the Acting Regional
Director, that the evidence regarding Russell's repre-
sentation of Petitioner's previous contracts raises no
material or substantial questions of fact which would
warrant a Board hearing.
Employer's Objection 2 alleges that Russell, while
rebutting the campaign literature claims of the Em-
ployer, denied that the Petitioner required its mem-
bers to pledge an oath of allegiance to the Union.
During the Regional Director's investigation, two wit-
nesses positively asserted Russell had made such a
statement. Russell himself said he had made no such
claim and admitted that Petitioner's constitution re-
quired members to take an oath to support its consti-
tution and bylaws. The Acting Regional Director
concluded that, if Russell had misrepresented the re-
quirement of an oath, the employees' vote in the elec-
tion could have been materially affected; accordingly,
he recommended a hearing on the factual issues
raised by Objection 2. We disagree. In our view,
Russell's misrepresentation of the mandatory nature
of a mere membership pledge of allegiance to the
Petitioner, even if made, would be immaterial in its
electoral effect and would not Warrant setting aside an
election. We therefore find, contrary to the Regional
Director, that Employer's Objection 2 is without mer-
it.
Accordingly, we shall overrule both of the
Employer's objections and, as the tally of ballots in
the election conducted on April 24 and 25 shows that
the Petitioner has received a majority of the valid
votes cast, we shall certify it as the exclusive bargain-
ing representative for the employees in the appropri-
ate unit .2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for the International Union,
United Plant Guard Workers of America (UPGWA),
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor orga-
nization is the exclusive representative of all the em-
ployees 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
2 In concurring with the result, Member Penello finds that the misrepresen-
tations alleged in the Employer's objections were not intended deceptions
rising to the level of fraud and therefore would not warrant setting aside the
results of the election , according to the reasoning of his dissenting opinion
in Medical Ancillary Services, Inc., 212 NLRB No. 80 (1974).
of employment.
853
MEMBER KENNEDY, dissenting in part:
The election held in a unit of guards was won by the
Petitioner by a one vote margin. The Employer ob-
jected to the election alleging, inter alia, that several
employees were interested in the possibility of trans-
ferring from guard to production positions and that,
on the evening before the election, Petitioner's repre-
sentative had falsely misrepresented to employees
that "all" of its collective-bargaining contracts pro-
vided for such transfer to manufacturing positions
with the right to return to a guard position without
loss of seniority. According to the Acting Regional
Director's report, two witnesses testified that
Petitioner's representative had said, in response to
questions, that Petitioner had negotiated provisions
for such transfer in other contracts, but if the employ-
ees transferred back to guard positions they would
lose their seniority. Other witnesses, according to the
Acting Regional Director, disputed this version of
what Petitioner's representative stated.
The Acting Regional Director concluded that the
opportunity to transfer from a guard to a production
position "was uppermost in the minds of several em-
ployees who had attended the Union meeting on the
night before the election" and was of "critical import"
because of the close vote. Accordingly, he recom-
mended that a hearing be held to resolve the "material
and substantial" questions raised by the objection.
As near as I can ascertain, the majority has under-
taken to resolve the conflict among the witnesses,
which the Acting Regional Director thought could be
resolved only by record testimony, by finding that
Petitioner's representative said only that "some" con-
tracts contained the transfer provision. I do not think
that this resolution is warranted. The witnesses cited
in support of the objection testified, according to the
Acting Regional Director's report, that Petitioner's
representative said that the Petitioner had negotiated
transfer provisions in other plants. They did not use
the phrase "some other plants." Moreover, the majori-
ty has placed on the Employer the impossible burden
of proving that among Petitioner's contracts "those
containing transfer clauses were extraordinarily and
disproportionately few." The Employer would not
have access to Petitioner's contracts with other em-
ployers. To the extent that this factor of transfer pro-
visions in contracts with other employers is relevant,
Petitioner should have the burden of proving their
contents since Petitioner is in the best position to
know what they contain. Finally, I believe the majori-
ty is in error in stating that there are no material
differences in the various versions of what was said by
Petitioner's representative at the election eve meeting.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I think that there is a direct and material conflict, as I as recommended by the Acting Regional Director.
did the Acting Regional Director. I agree with the majority in overruling Employer's
Accordingly, I would direct a hearing on Objection Objection 2.