Zarn, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1968

170 N.L.R.B. 1135 (N.L.R.B. 1968)

ZARN, INC. 1135
Zarn , Inc. and Textile Workers Union of America,
AFL-CIO, CLC, Petitioner . Case 11-RC-2394
April 5, 1968
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Pursuant to a Decision and Direction of Election
by the Regional Director for Region 11, an election
by secret ballot was conducted on August 26, 1966.
At the conclusion of the balloting, the parties were
furnished a tally of ballots which showed that, of
approximately 130 eligible voters, 65 cast votes for,
and 50 against, the Petitioner, and 4 ballots were
challenged. The challenged ballots are insufficient
in number to affect the results of the election.
Thereafter, the Employer filed five timely objec-
tions to conduct affecting the results of the elec-
tion.
On November 7, 1966, the Regional Director is-
sued a Supplemental Decision and Certification of
Representative in which he overruled the Em-
ployer's objections and certified the Petitioner as
the collective-bargaining representative of the em-
ployees involved. On November 25, the Employer
filed a Request for Review and Motion for Stay of
Regional Director's Decision, and, on December 1,
a' Supplemental Memorandum. On January 26,
1967, the National Labor Relations Board denied
the Employer's request for review with respect to
Objections 1, 2, 3, and 5, granted review with
respect to Objection 4, directed a hearing "for the
purpose of receiving evidence on the matters ...
relating to objection 4, especially concerning Ex-
hibits G and I attached to the Regional Director's
Supplemental Decision," granted the Employer's
motion to stay, and stayed the Certification of
Representative pending the Board's final deter-
mination in the matter. Thereafter, a hearing was
held before Hearing Officer Louis Aronin on
February 27 and March 30. All parties were
represented and were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to introduce evidence on the issues.
On May 15, 1967, the Hearing Officer issued his
Report on Objections in which he recommended
that Objection 4 be overruled and that the Peti-
tioner be certified. Thereafter, the Employer filed
timely exceptions to the Hearing Officer's report
and a brief in support of its exceptions.
The Board' has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby -af-
firmed. The Board has considered the Hearing, Of-
ficer's Report, the Employer's exceptions and brief,
and the entire record in this case, and hereby
adopts the Hearing Officer's findings, conclusions,
and recommendations only to the extent that they
are consistent herewith.
The Hearing Officer found that the letter dated
August 22, 1966, which the Petitioner wrote to the
Employer, and which was posted on the same date
in the Employer's Reidsville, North Carolina, plant
and distributed to the employees on August23
(Exh. G), and the handbill which the Petitioner, dis-
tributed to the employees on August 23 and 24
(Exh I) contained a number of statements which
constituted misrepresentations relating to material
issues in the election. Although we agree that some
of these statements were material misrepresenta-
tions, we do not agree with the Hearing Officer's
conclusion that the Employer had ample time to
reply thereto and to his further conclusion that the
employees could be presumed to have had, access
to the facts regarding such statements.
Petitioner's letter of August 22 concerned
benefits obtained by the Petitioner in contracts with
American Viscose (F. C. M. Corporation) at eight
plants located in Pennsylvania, Virginia, and West
Virginia. This was the first mention by the Peti-
tioner of these contracts during the preelection
campaign. Prior to the election, the Employer
whose plant is in Reidsville, North Carolina, unsuc-
cessfully attempted to obtain copies of these con-
tracts from an employer association. In view of the
number of contracts involved, the absence of any
relationship between the Employer and American
Viscose, and the geographical separation of the
Employer from the American Viscose plants, we do
not agree with the Hearing Officer that the Em-
ployer's failure to visit or telephone the American
Viscose plants evidenced a lack of proper diligence.
Nor could the Employer reasonably have expected
the Petitioner to honor a request that it furnish co-
pies of the contracts it had misquoted, in view of
the Petitioner's prior refusal to comply with a
similar request for a copy of another one of Peti-
tioner's contracts with a third employer. In our
opinion, because of the timing of the Petitioner's
letter, and the circumstances set forth above, there
' Pursuant to the provisions of Section 3(h) of the National Labor Rela-
tions Act, as amended, the Board has delegated its powers in connection
with this case to a three -member panel
170 NLRB No. 130
1136 DECISIONS OF NATIONAL
would not have been time , in any event , for the
Employer to obtain copies of the contracts and
make an effective reply before the election.
The handbill , the Hearing Officer found, was
received by the Employer on August 24, and con-
tained misrepresentations with respect to a contract
recently negotiated between the International
Brotherhood of Electrical Workers and the Syl-
vania Electric Company, covering employees of its
new plant in Reidsville, and conveyed the errone-
ous impression that the contract had been
negotiated by the Petitioner . When the Employer,
on the day of the election, attempted to obtain a
copy of the contract from Sylvania , according to
the uncontradicted testimony of the Employer's
president , it was told that the contract "was in New
York for signature ." Moreover , the evidence does
not support the Hearing Officer 's presumption that
the Employer 's officials were familiar with the local
management of Sylvania. We therefore do not
agree that the Employer was in no way impeded
from obtaining information and informing its em-
ployees about the Sylvania contract prior to the
election. Nor does the record support the Hearing
Officer 's finding that the Employer 's employees
were in a position to ascertain the facts with respect
t See Hollykood Ceramics Company, Inc, 140 NLRB 221 As we have
sustained Objection 4, we find it unnecessary to rule on the Employer's ex-
ceptions to the Hearing Officer's refusal to find additional material
misrepresentations in the Petitioner 's campaign literature
' 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 I I within 7 days after the date of this Decision and Direction of
LABOR RELATIONS BOARD
to the provisions of the Sylvania contract in the
brief time available.
In all the circumstances , we find , in disagreement
with the Hearing Officer , that there was not ample
time prior to the August 26 election for the Em-
ployer to ascertain the facts with respect to the
Petitioner 's statements and to make an adequate
reply to the material misrepresentations contained
therein , and that the Employer 's employees were
not in a position to determine for themselves what
the facts were. Therefore, we conclude that there is
merit in the Employer 's Objection 4 and that it
should be sustained.2
Accordingly, we shall order that the election be
set aside, and direct that a second election be held.
ORDER
It is hereby ordered that the electioned con-
ducted herein on August 26, 1966, be, and it
hereby is, set aside, and that the Certification of
Representative heretofore issued by the Regional
Director be, and it hereby is, vacated.
[Direction of Second Election3 omitted from
publication. ]
Election The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB
1236