LOF Glass, Inc.

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.