Conalco, Inc.

CONALCO, INC. Conalco, Inc. and Aluminum Workers International Union, AFL-CIO, Petitioner. Case 26-RC-5158 August 10, 1976 DECISION ON REVIEW AND CERTIFICATION OF RESULTS By MEMBERS FANNING, PENELLO, AND WALTHER Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 26 on December 17, 1975, an election was held on January 14, 1976,' among the employees in the appropriate unit.2 Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 78 eligible voters, 29 cast bal- lots for and 45 cast ballots against Petitioner; no bal- lots were challenged. The Petitioner filed timely ob- jections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the National Labor Relations Board, the Regional Director conducted an investigation and on Febru- ary 23, 1976, issued a Supplemental Decision and Di- rection of Second Election in which he recommend- ed that Objection 3 be overruled and that Objections 1 and 2 be sustained and a new election directed. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Employer filed a timely request for review in which it urged that the Regional Director departed from Board precedent in sustaining the objections. By telegraphic order dated April 12, 1976, the Na- tional Labor Relations Board granted the request for review and stayed the election pending decision on review. 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 issues under review and makes the following findings: Objections I and 2 are based on two documents, referred to as Exhibits A and B, which were prepared and signed by Lucretia Birmingham, a unit employ- ee, and distributed by her husband the day before the election. The Regional Director concluded that Ex- hibit B which merely set forth various arguments ' Unless otherwise indicated, all dates refer to 1976 2 All production and maintenance employees employed at the Employer's Newbern, Tennessee, location excluding office clerical employees , profes- sional employees, guards and supervisors as defined in the Act 879 against the Union was not objectionable and did not under any circumstances warrant setting aside the election. We agree with the Regional Director. Exhibit A quotes the starting and top pay for as- sembly workers at the Employer's Benton, Kentucky, plant where the production employees are currently covered by a collective-bargaining agreement with the Union and quotes the similar pay ranges for the Employer's plant involved herein. Petitioner con- tends that Exhibit A is a material misrepresentation in that it states that the starting rate for assembly workers at the Benton plant is $2.48 per hour when in fact the rate is $2.63 per hour.' As noted above, both Exhibits A and B were pre- pared by unit employees Lucretia and William Bir- mingham. Mrs. Birmingham obtained the wage rates contained in Exhibit A by telephone from a clerical employee in the Benton plant. Although the Birming- hams used the Employer's supplies and equipment to prepare the leaflets, there was no evidence that the Employer played any role in preparing or distribut- ing them. In fact, after becoming aware of the leaf- lets, Plant Manager Simpson told Mrs. Birmingham that she would have to pay for the paper that she used to duplicate the leaflets. The leaflets were dis- tributed by Mr. Birmingham with the Employer's knowledge.4 The parties agree that the earliest distri- bution of Exhibit A was around 9 or 10 o'clock on January 13, the day before the election. The Peti- tioner did not receive a copy of the leaflet until the afternoon of January 13. The subject matter of Exhibit A and particularly the union representation of the Employer's employ- ees at other plants was a major campaign issue and Petitioner handbilled the plant on a number of occa- sions concerning this issue. The Employer conceded that, in a speech delivered by Plant Manager Simp- son on January 6 and 9, there was a comment to the effect that wages and benefits at the plant were "much better" than at the unionized Benton plant, but that no specific comparison of wage rates was made. On the foregoing facts the Regional Director found that Exhibit A which quoted the starting pay at Benton as $2.48 when in fact it was $2.63 amounts to a misrepresentation of material fact which oc- curred at a time when Petitioner had no adequate opportunity to respond. He further found that, al- though the evidence failed to establish that the Em- ployer was responsible for the preparation of the documents, the Employer permitted the distribution of the document during working time and made no 3 The wage rate at the Benton plant was in fact $2 48 per hour until Sevember I. 1975, at which time it was raised to $2 63 per hour There were no rules in existence bearing on the distribution of literature in the Newbern plant 225 NLRB No. 123 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effort to correct the information contained therein. He concluded that the misrepresentation, though prepared by rank-and-file employees, reinforced the statement made in the Employer's speech that the Newbern rates were "much better" than the union- organized Benton plant and was a material misrepre- sentation sufficient to warrant setting aside the elec- tion. In its request for review, the Employer contends, inter aha, that the Regional Director erred in setting aside the election because the misrepresentations were not material, and therefore could not have af- fected the results of the election. We agree that the alleged misrepresentations referred to in Objection I and 2 are not under any standard material in nature and that the election should not be set aside.' In so 5 Member Fanning agrees with the result reached herein because he does not find that the misrepresentation is objectionable under the standards set forth in Hollywood Ceramics Company, Inc, 140 NLRB 221 (1962) For the reasons set forth in his dissenting opinions in Medical Ancillary Services, finding, we particularly rely on the fact that the doc- ument was prepared and distributed by rank-and-file employees and that there is no evidence that the Em- ployer in any way assisted the employees involved. Accordingly, we shall overrule the Petitioner's Objec- tions 1 and 2 and certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Aluminum Workers International Union, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. Inc, 212 NLRB 582 (1974), and Ereno Lewis, 217 NLRB 239 (1975), Mem- ber Penello agrees that the misrepresentations referred to in Objections I and 2 do not warrant setting the election aside Member Walther agrees with the conclusion that the election should not be set aside based on the alleged misrepresentations inasmuch as the same result is reached under any view of the applicability of Modme Manufacturing Company, 203 NLRB 527 (1973), and Hollywood Ceramics Company, Inc, supra