Chemi-Trol Chemical Co.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chemi-Trol Chemical Co. and United Steelworkers of America AFL-CIO-CLC, Petitioner. Case 8-RC- 7786 May 11, 1971 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND KENNEDY Pursuant to a Decision, Order, and Direction of Sec- ond Election issued by the Board on October 22, 1970, an election by secret ballot was conducted in the unit found appropriate on December 3, 1970, under the direction and supervision of the Regional Director for Region 8 . At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 75 eligible voters, 68 cast ballots, of which 38 were for, and 27 against, the Petitioner, and 3 were challenged ballots. The challenged ballots were insufficient in number to affect the results of the elec- tion. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the objections and, on January 12, 1971, the Regional Di- rector issued and duly served upon the parties.his Re- port on Objections in which he recommended that Ob- jections 1, 2, and 3 be overruled and Objection 4 be sustained. He further recommended that the second election be set aside and that a new election be directed. Thereafter, the Petitioner filed timely exceptions to the Regional Director's report, and a supporting brief., The Employer filed a brief in opposition to the Petitioner's exceptions.' 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 purposes 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 concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following unit is appropriate for the ' In the absence of exceptions thereto, we adopt, pro forma, the Regional Director's recommendation that Objections 1, 2, and 3 be overruled. purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding truck drivers employed at the Employer's tank division located at 1098 West State Street, Fremont, Ohio, excluding all office clerical em- ployees, professional employees, guards and supervisors as defined in the Act and all employees at the Employer's Weed Control Division, Gib- sonburg, Ohio and Tool Division, 2400 West State Street, Fremont, Ohio. 5. The Board has considered the Regional Director's Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the Regional Director's findings and recommendations to the extent consistent herewith. In our view, assuming that the statement in Peti- tioner's election eve bulletin to the employees that the "International Union does not fine any members" is a misrepresentation, it does not, in and of itself, warrant the setting aside of the election. Conduct upon which an election is set aside must be found likely to have affected the outcome of the election. The statement in the present instance was made in answer to information given to the employees by the Employer of the Peti- tioner's power to fine members. Petitioner's authority to fine members under its constitution had been in- jected into the election campaign sufficiently in advance of the election to permit the employees to make an independent evaluation of Petitioner's assertion. We cannot agree that the Petitioner's bulletin had an im- pact on the election. Under these circumstances, Peti- tioner's assertion that the International does not fine members was capable of being evaluated by the em- ployees and could not have had any substantial effect on the election. See Convalescent Hospital Management Corp., d/b/a Elmcrest Convalescent Hospital, 173 NLRB No. 7. Accordingly, we shall not adopt the Regional Director's recommendation, and we hereby overrule Employer's Objection 4. As we have overruled the objections to the election, and as the tally of ballots shows that the Petitioner received a majority of the valid votes cast, we shall certify the Petitioner as the collective-bargaining repre- sentative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that United Steelworkers of America, AFL-CIO-CLC, has been designated and selected by a majority of the employess in the unit found appropriate herein as their representative for the purposes of collective bargaining and that pursuant to Section 9(a) of the Act the said labor organization is the 190 NLRB No. 56 CHEMI-TROL CHEMICAL CO. 303 exclusive representative of all such employees for pur- pay, wages, hours of employment, and other terms and poses of collective bargaining with respect to rates of conditions of employment.