Bud Radio, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1967

165 N.L.R.B. 186 (N.L.R.B. 1967)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bud Radio , Inc. and Opal Casare, Petitioner,
and Architectural Metal Workers Local No.
51 (Division of International Molders and
Allied Workers Union , AFL-CIO). Case
8-RD-387.
June 7, 1967
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on September 8, 1966, under the
direction and supervision of the Regional Director
for Region 8, among the employees in the stipulated
unit. At the conclusion of the balloting the parties
were furnished a tally of ballots which showed that
of approximately 120 eligible voters, 101 cast valid
ballots, of which 52 were for, and 45 were against,
the Union, and 4 ballots were challenged. The
challenged ballots were insufficient in number to
affect the results of the election. Thereafter, the
Petitioner filed timely objections to conduct
affecting the results of the election.
The Regional Director investigated the objections
and on October 20, 1966, issued his report on
objections, in which he found merit in Petitioner's
Objection 4 and recommended that the election be
set aside and a new election be held. He also
recommended that Objections 2 and 3 be overruled.'
Thereafter, the Employer filed timely exceptions to
the Regional Director's report, and a brief.2
Upon the entire record in this case, the National
Labor Relations Board finds:
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act, as
amended, and it will effectuate the purposes of the
Act to assert jurisdiction herein.
2. The Union 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. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by the Employer at its Willoughby,
Ohio, plant, excluding office clerical employees,
technical employees, professional employees,
guards, and supervisors as defined in the Act.
5. The Union has represented the Employer's
' The Regional Director found it unnecessary to make a
determination with respect to Objection 1, in view of his
recommendation that the election be set aside on the basis of
Objection 4
2 In the absence of exceptions we adopt pro forma the Regional
approximately 125 production and maintenance
employees for 10 years. Negotiations began in May
1966 for a new collective-bargaining agreement to
replace a current agreement with an expiration date
of June 11, 1966. Bargaining sessions in early June
were conducted with the assistance of a Federal
Mediation and Conciliation Service Commissioner.
On June 7 the Employer and the Union's negotiating
committee reached full agreement on all the terms of
a new contract.
Employee Opal Casare had been chairman of this
committee. On June 11 and 18, unit employees voted
to reject the June 7 agreement, and on June 27
employee Casare filed the decertification petition
herein. On June 29, the Employer and the Union
signed a memorandum of agreement which reduced
to writing their agreement of June 7.
About July 15, the Employer posted a bulletin
indicating to its employees that the new contract
would be effective retroactively, should the instant
proceeding result in certification of the Union. About
this same time the Employer reclassified certain
employees pursuant to an agreement made during
negotiations. The ultimate effect of the
reclassifications would be to increase the earnings of
the employees involved, and the Employer took this
action apparently to induce certain employees, who
would be difficult to replace, to remain in its employ.
On September 1, the Union sent each employee a
copy of the memorandum of agreement, and on
September 5 sent each a letter, which appealed for
their vote and reminded them that decertification
could operate to deprive employees of
representation for a year and perhaps even
jeopardize all contract benefits.
Petitioner's Objection 4 alleged that the
Employer's bulletin misled employees about the
consequences of the forthcoming election. In
sustaining this objection, the Regional Director
found that the execution of the June 29
memorandum of agreement and the subsequent
publication to employees of the contract benefits
interfered with the conduct of the election by
conferring additional prestige upon the Union.
We reject the Regional Director's finding that the
above conduct was objectionable.
In our opinion, the Employer's bulletin and the
Union's letter are neither misleading nor coercive on
their face. The Employer and the negotiating
committee had reached agreement as to the terms of
a new contract on June 7, well before the filing of the
petition herein. We view the June 29 memorandum
as merely a formal acknowledgment by the parties of
the terms agreed upon.3 We find no basis for
construing the June 29 memorandum, or the
Director 's recommendation that Objections 2 and 3 be overruled
' The June 7 agreement did not in any event constitute a bar to
an election , as it was not reduced to writing before the filing of the
petition herein
165 NLRB No. 25
BUD RADIO, INC. 187
publication of its terms, as objectionable conduct.
Accordingly, we overrule Objection 4.4
The Regional Director found it unnecessary to
resolve Objection 1, which alleges that the employee
reclassifications mentioned above constituted
objectionable conduct. The Employer, while
requesting that Objection 4 be overruled and the
present election sustained, raises the question that
Objection 1 should also be overruled. We note that
the employee reclassifications were made almost 2
months prior to the election, and that they were
discussed by the parties during the contract
negotiations which took place before the critical
period. At that time the union negotiating committee
headed by the Petitioner took the position that there
would be no objection to reclassifications provided
they were not considered a part of the general wage
increase that was being negotiated. The Union and
Petitioner in our opinion thereby acquiesced in the
reclassifications which the Employer later made,
relying upon their assurances that they would not
object. Further the reclassifications apparently were
made for a sound business reason, that is to retain
employees difficult to replace. Under the above
circumstances, we hereby also overrule Objection 1.
We shall issue an appropriate certification of
representative in this proceeding in view of our
findings, since the tally shows that the Union
received a majority of the valid votes cast in the
decertification election.
CERTIFICATION OF REPRESENTATIVE
IT IS HEREBY CERTIFIED that Architectural Metal
Workers Local No. 51 (Division of International
Molders and Allied Workers Union, AFL-CIO), has
been designated and selected by a majority of the
employees 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 exclusive
representative of all employees in such unit for the
purposes of collective bargaining with respect to
rates of pay , wages, hours of employment, and other
terms and conditions of employment.
' The cases relied on by the Regional Director deal with factual
situations essentially different from the one before us Thus in
Electric Auto-Late Company, 116 NLRB 788, contract negotiations
between the employer and incumbent union , as well as
publication of contract benefits, occurred within the critical
preelection period and the agreement to the contract was reached
during that interval Essentially the same considerations
distinguish Kiekhaefer Corporation, 120 NLRB 95, and Krambo
Food Stores, Inc , 120 NLRB 1391, from the situation before us,
which is one where contract negotiations transpired and were
fully consummated prior to the beginning of the critical period In
the remaining case cited by the Regional Director , Air Control
Products, Inc , 147 NLRB 1229 , negotiations were not completed
before the critical period, as they were in the instant case We
note, moreover , that the aforecited cases each involved a situation
where a question concerning representation had been raised prior
to the time the new benefits were negotiated with the incumbent
union by a petition filed by a rival labor organization Because of
the basis on which we decide this case, we deem it unnecessary to
reach the question whether the principle of those cases would in
any event be applicable in a situation such as the instant one
where the question concerning representation has been raised by
a petition for decertification of the incumbent union, which
remained entitled to recognition until decertified Cf Perry
Rubber Company , 133 NLRB 225 , Wabana, Inc , 146 NLRB 1162,
1171,1172