Mosher Steel Co.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mosher Steel Company and United Steelworkers of America, AFL-CIO, Petitioner. Case 23-RC-3989 January 18, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was conducted among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 980 eligible voters, 912 cast valid ballots, of which 511 were for, and 378 against, the Petitioner. There were 23 challenged ballots, which were insufficient to affect the results. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. On November 15, 1973, the Regional Director issued and served on the parties his Report on Objections to Election recommending that the objections be overruled in their entirety and Petition- er be certified as the exclusive collective-bargaining representative in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the following employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: a companywide unit of the employees at all of the Employer's seven plants, at 3910 Washington and 6422 Esperson Street, Houston, i In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendation to overrule Objections 2 and 3, respectively 2 Although he agrees with his colleagues that the election should not be set aside, Member Penello does so because in his view the statement does not constitute interference with the election As he indicated in In 6 in Texas; San Antonio, Texas; Dallas, Texas; Lubbock, Texas; Tyler, Texas; and Shreveport, Louisiana; described as follows: all production and maintenance employees, including leadmen, truckdrivers, janitors, and all plant clericals. Excluded: all office clerical employees, drafts- men, inside and outside salesmen, watchmen, guards, professional employees, and supervisors as defined in the Act. 5. The Board has considered the objections, the Regional Director's report, and the Employer's exceptions and brief and hereby adopts the Regional Director's findings, conclusions, and recommenda- tions.' The Employer objected to the distribution at its seven plants by the Petitioner of a leaflet which stated that, according to a report which the Employ- er had filed with the Government, only two employ- ees had vested rights in the Employer's pension plan. According to evidence submitted by the Employer, however, 150 employees possessed vested rights in the plan. The Government report, Department of Labor Form D-2, had listed two employees as being separated from employment during the previous year with vested rights in the pension plan. This leaflet was the third one which Petitioner had circulated which stressed the Employer's pension plan as an election issue. We agree with the Regional Director's conclusion that the Petitioner's statement in this leaflet constituted a misrepresentation of a material campaign issue.2 The Employer's Industrial Relations Manager whose office is located in the Company's Houston, Texas, headquarters, had received a copy of Petition- er's leaflet at his office shortly after its distribution in Houston early on the morning of August 28, 1973, at least 48 hours prior to the election. By that afternoon, verification had been received that the leaflet had been distributed at six of the seven plants. The Petitioner's circulation of this leaflet was consistent with its practice of distributing leaflets at all facilities. The information necessary to form an effective reply to this leaflet was readily accessible to the Employer inasmuch as the pension plan is administered from the Employer's Houston office where records of the plan are maintained. Further- more, the Industrial Relations Manager had been one of the three signatories for the Employer on the D-2 form which the Petitioner had misrepresented. The Employer's primary contention is that it could Modine Manufacturing Company, 203 NLRB No 77, Member Penello does not agree that the Board should continue to adhere to the Hollywood Ceramics rule, and will in a proper case discuss modification of the rule Accordingly. it is unnecessary for him to reach the question in this case as to whether the Employer had sufficient time to reply. 208 NLRB No. 148 MOSHER STEEL CO. have effectively refuted this misrepresentation only by speeches to the employees and that there was insufficient time to do this because of the Board's 24- hour speech-ban rule. Speeches were delivered from prepared texts to the employees at each plant after the leaflets had been distributed. Not only is there ample reason to question the Employer's assertion that there was not sufficient time to prepare a modification of these speeches in order to refute the Union's assertions concerning the pension plan, but, further, we do not accept the Employer's premise that no other manner of reply would have been adequate. Other means, such as leaflets, could have been promptly utilized prior to the election as a means of countering Petitioner's statements. We note that on August 29 the Employer distributed a campaign insert with paychecks and circulated a previously prepared leaflet which refuted other allegedly inaccurate statements made during the campaign by the Petitioner. Although fully aware of the Petitioner's pension plan misrepresentation, the Employer nonetheless made a judgment not to deviate from its predetermined election campaign plan and made no effort to reply in any manner at 523 any of its locations. The facts show, however, that the Employer had adequate opportunity, had it so chosen, to reply to these misrepresentations. Accord- ingly, we agree with the Regional Director that there is no basis upon which to set aside the election. Modine Manufacturing Company, 203 NLRB No. 77; Holli'wood Ceramics Company, Inc., 140 NLRB 221. As the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for the United Steelworkers of America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment.