Colfor, Inc.

COLFOR, INC. Colfor, Inc. and International Union, United Automo- bile, Aerospace and Agriculture Implement Workers of America, UAW, Petitioner. Case 8 RC- 11649 July 13, 1979 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion' held on March 22, 1979, and the Regional Di- rector's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs of both the Petitioner and the Employer, and hereby adopts the Regional Director's findings2 and recommendations. ORDER It is hereby ordered that a hearing be held before a duly designated hearing officer for the purpose of re- ceiving evidence to resolve the issues raised by the Employer's Objections 2 and 3. IT IS FURTHER ORDERED that the hearing officer des- ignated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of credibility of wit- nesses, findings of fact, and recommendations to the Board as to the disposition of said objections. Within 10 days from the date of issuance of such report, ei- ther party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy thereof with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 8 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was 66 for. and 52 against. the Petitioner: there were no challenged ballots. ' In the absence of exceptions, the Board adopts. proforma, the Regional Director's recommendation to overrule the Employer's Objections 1. 6. and its last unnumbered objection. The Regional Director's Report on Objections is attached hereto as an appendix. MEMBER PENEL IO. dissenting: Contrary to my colleagues. I would not remand this case for a hearing with regard to the misrepresen- tation allegations set forth in Employer's Objections 2 and 3.3 As I stated in my dissenting opinion in Gen- eral Knit of California, Inc., 239 NLRB 619 (1978), 1 continue to adhere to the sound principles of Shop- ping Kart Food Market, Inc., 228 NLRB 1311 (1977), and it is clear that under Shopping Kart these objec- tions should be summarily overruled. Accordingly, I would immediately certify the Petitioner and allow it to proceed with the business of collective bargaining without further ado. I agree with my colleagues' disposition o the remainder of the tmploy- er's objections APPENDIX REPORT ON OBJECTIONS Pursuant to a Stipulation for Certification Upon Consent Election approved by me on February 21. 1979. an election was conducted on March 22. 1979. among the emplobees of the Employer in the following described unit: All production and maintenance employees including quality control employees but excluding all office cleri- cal employees, professional employees. guards and su- pervisors as defined in the Act. The Tally of Ballots issued after the election shows that of approximately 124 eligible voters, 118 cast ballots, of which 66 were cast for, and 52 against, the Petitioner. There were no challenged ballots. On March 27. 1979, the Employer filed timely objections to the conduct of the election and to conduct affecting the results of the election, duly serving a copy thereof on the Petitioner. Pursuant to the provisions of Section 102.69 of the Board's Rules and Regulations, an investigation of the ob- jections has been made, and I hereby make the following findings, conclusions. and recommendations. Objection No. I The Employer asserts in this objection that the Petitioner threatened employees and the Employer with violence and retaliation so as to destroy the laboratory conditions re- quired in Board elections. Neither the Employer's witnesses nor the investigation disclosed any evidence of such conduct by the Petitioner during the critical period. Therefore, I find the Employer's Objection No. I to be without merit, and I shall recom- mend that it be overruled. Objections Nos. 2 and 3 In these objections, which I shall consider together due to their similar nature. the Employer contends that the Peti- tioner, during the critical period. materially misrepresented wage rates and other benefits received by employees of other employers which have a collective-bargaining rela- tionship with the Petitioner. Furthermore. it is alleged b the Employer that during the critical period, the Petitioner 243 NLRB No. 76 465 I)t('lISIONS O() NAIIONAI I.ABOR RELATIONS BOARI) materially mirepresented to employees the I:mployer's pen- sion plan and profits. The evidence reveals that on March 20, 1979. the Peti- tioner conducted a meeting which was attended hby approxi- mately 3() employees. In support of this objection, the Em- ployer presented employees who testified they were told by' petitioner representatives at this meeting that employees of Merit Plastics, which is a plant near the Employer and whose employees are represented by the Petitioner, earn over $6.00 per hour. Moreover, these employees also testi- fied they were told at this meeting that the Petitioner had obtained a $1.00-per-hour cost of living increase for em- ployees at other plants in the area and $.90-per-hour cost of living increase at Merit Plastics over the last three quarters. With respect to the earnings of the EmploNer. employees testified that petitioner representatives stated that the Em- ployer and/or its parent company ABS earned a 20 percent profit last year. It is the position of the Employer that dur- ing the fiscal year ending October 31, 1978, it earned an after-taxes profit of 4.91 percent and ABS, 4.84 percent. These allegations are denied by the Petitioner, which as- serts that at the March 20. 1979. meeting, employees were told that employees of Merit Plastics earn, for the most part, more than the Employer's employees, including cost of living; that since 1976. employees of General Motors, Chrysler, and Ford have received approximately a $1.00- per-hour increase in their cost of living adjustment: and finally, that employees of Merit Plastics have received a cost of living adjustment of approximately $.40 per hour since May 1978. Concerning the earnings of the Employer and/or its par- ent company. Petitioner representatives testified they did not attribute a 20 percent profit to either entity but, rather, stated that in fiscal year 1977. ABS earned an exceptionally high 20 percent return on net worth stockholders equity). Inasmuch as the evidence offered with respect to Objec- tions Nos. 2 and 3 raises issues of fact and credibility which I cannot resolve ex parte, I shall recommend that issues raised by the allegations concerning Petitioner's March 20. 1979. meeting covering wages and benefits of other employ- ers' employees represented by the Petitioner and the earn- ings of, and wages paid by, the Employer and/or its parent company be resolved at a hearing before a hearing officer to be designated by me. Objections Nos. 4 and 5 Inasmuch as the matters raised by the Employer in its Objections Nos. 4 and 5 involve the review of related cir- cumstances, I shall consider them together. In its Objections Nos. 4 and 5, the Employer contends that during the balloting periods, the Petitioner engaged in electioneering by and in the polling area and that such con- duct was condoned by the Board Agent. The investigation discloses that during the morning vot- ing session, one of the Petitioner's two observers wore a "YES" button on his hat. When it was brought to his atten- tion at the conclusion of the morning session by the Em- ployer's attorney, the Board Agent assured her that the wearing of such an insignia posed no problem to the elec- tion process. No such buttons were worn during the after- noon voting period. The investigation further reveals that the election was held on the Employer's premises in an area designated as the "downstairs lunchroom." Positioned around a portion of the periphery of its room are vending machines at which employees normally make purchases of assorted items such as coffee and candy. At a number of times during the oting periods, employees made purchases from these machines before voting, af'ter voting, or without voting at all. On all but a few occasions. the employee left immediately alfter making a purchase, unless he or she was waiting to vote. If an employee was not waiting to vote and appeared to linger in the polling area, he or she obeyed a request by the Board Agent to leave the polling area. There was no evidence disclosed by the investigation that any of the em- ployees in the polling area were agents of the Petitioner or that they engaged in any electioneering. In view of' the above and the fact that the Board has long held that the wearing of buttons or similar insignia at an election by participants therein is not prejudicial to the fair conduct of the election, I conclude that Employer's Objec- tions Nos. 4 and 5 are without merit. Larkwood Farm.s, a Divisionl of the Pill.sbur, Conanv, 178 NLRB 226; Electric Wheel (ompan, Division of the Firestone ire & Rubber (Company, 120 NL.RB 1644; Western Electric Complanl, In- corporated, 87 NLRB 183: Craddock-T7'rn Shoe Corpora- tion, 80 NLRB 1239. Accordingly, I shall recommend that they be overruled. Ohjeclion No. 6 The gravemen of this objection is that during the critical period, employees were offered substantial monetary in- ducements to solicit support for the Petitioner. Neither the Employer's witnesses nor the investigation disclosed any evidence of such activity during this period. Therefore, I find the E'mployer's Objection No. 6 to be without merit, and I shall recommend that it be overruled. Unnumbered Objection The Employer's last objection constitutes, in effect, a "catch-all" objection, and no additional evidence was of- fered in support of the general allegations contained therein. Accordingly. I find that this objection is without merit and shall recommend that it be overruled. CON('LUSIONS AND RECOMMENDATIONS I conclude that the Employer's Objections Nos. 1, 4, 5. 6, and its unnumbered objection do not raise substantial or material issues of either fact or law with respect to the elec- tion and that they are without merit. I therefore recom- mend that they be overruled. I further conclude that the Employer's Objections Nos. 2 and 3 raise issues of fact and credibility which cannot be resolved ex parte. I therefore recommend that the issues raised by Objections Nos. 2 and 3, limited to the Petition- er's March 20, 1979, meeting covering wages and benefits of other employers' employees represented by it and the earn- ings of, and wages paid by, the Employer and/or its parent company, be set for hearing before a duly designated hear- ing officer. 466