Earle Industries, Inc.

EARLE INDUSTRIES, INC. 67 Earle Industries, Inc. and International Ladies Gar- ment Workers Union, AFL-CIO, Petitioner. Case 26-RC-5628 March 3, 1980 SECOND SUPPLEMENTAL DECISION AND ORDER By Chairman Fanning and Members Penello and Truesdale Pursuant to a Supplemental Decision and Direc- tion of Second Election issued by the National Labor Relations Board on May 11, 1979,1 a second election by secret ballot was conducted on June 22, 1979, among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 100 eligible voters, 48 cast ballots for, and 47 against, Petitioner. There were 10 chal- lenged ballots, a number sufficient to affect the re- sults of the election. Thereafter, both Petitioner and the Employer filed timely objections to con- duct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an in- vestigation of the challenges and objections, and, on August 3, 1979, the Regional Director issued and duly served on the parties his report on the ob- jections and challenged ballots. In his report, Re- gional Director recommended that the challenges to the ballots of Milton Atkins, Mary Dorsey, Irby McCain, Carolyn McClain, Early Morton, Carolyn Williams, and Virgil Wright be overruled, and that a hearing be directed to resolve the eligibility status of Hildia Brown, Evelyn Curry, and Cynthia Smith in the event that the challenges to their bal- lots remain determinative of the election results. The Regional Director, while overruling Petition- er's Objections 1 and 3, as well as the Employer's Objections 1, 2, 3, 4, and 6,2 further recommended that Petitoner's Objection 2 be sustained, and that the election held herein be set aside in the event that a revised tally of ballots shows that Petitioner has not received a majority of the ballots cast. Thereafter, the Employer filed timely exceptions and a supporting brief. 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. Upon the entire record in this case, the Board finds: i Not reported in volumes of Board Decisions. 2 The Regional Director also approved the Employer's request to withdraw its Objection 5. 248 NLRB No. 11 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. Petitioner is a labor organization claiming 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 have stipulated, and we find, that the following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding shipping and receiving employees, em- ployed at the Employer's Earle, Arkansas, plant, excluding all office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the Employer's exceptions and brief, and the entire record in this case, and hereby adopts the Regional Director's findings and recom- mendations 3 only to the extent consistent here- with. In its Objection 2, Petitoner alleges, in substance, that the Employer interfered with the employees' right to select a bargaining representative by failing to post the Board's official notice of election until 2 days before the election. The evidence with respect to his objection is as follows. On June 13, 1979,4 the Regional Office mailed the Employer eight of- ficial election notices for immediate posting in usual and conspicuous places. Thereafter, Petition- er's representative, Ward, called the Regional Office on the morning of June 20, and informed a Board agent that the Employer had not posted any election notices. The Board agent then advised the Employer's counsel, Katherine Carlyle, of the post- ing deficiency. After learning from Employer's rep- resentative, Jim Felsenthal, that the election no- tices, in fact, had not been posted, Carlyle instruct- ed him to do so immediately. Felsenthal posted one election notice 5 or 10 minutes later. Petitoner's two witnesses testified that, between 10:30 a.m. and noon on June 20, they first observed the election notice posted above a bulletin board 3 In the absence of exceptions thereto, we adopt, pro forma, the Re- gional Director's recommendations to overrule Petitioner's Objections I and 3; the Employer's Objections 1, 2, 3, 4, and 6; and the challenges to the ballots of Milton Atkins and Irby McCain. We also adopt the Region- al Director's recommendations that the challenges to the ballots of Mary Dorsey, Carolyn McClain, Early Morton, Carolyn Williams, and Virgil Wright be overruled, and that the challenges to the ballots of Hildia Brown, Evelyn Curry, and Cynthia Smith raise issues which can best be resolved after a hearing I All dates herein are in 1979. unless otherwise indicated. EARLE INDUSTRIES. INC. 67 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD near the unit employees' timeclock. The Employer notes in its brief that all the unit employees clock in and out at the beginning and the end of their shifts. According to the Employer, these employ- ees are also required to clock in and out for lunch. At the election held on June 22, 105 employees voted, including 5 challenged voters found eligible herein who had been laid off due to lack of work and 3 other employees on layoff status who also voted under challenge.5 The unit stipulated to by the parties consists of approximately 100 produc- tion and maintenance employees employed at the Employer's Earle, Arkansas, facility. 6 The Employer has excepted to the Regional Di- rector's recommendation that Petitioner's Objection 2 be sustained. The Employer contends that an of- ficial election notice was posted 2 days before the election in a conspicuous place, and that the timing of the posting of the election notice did not under- mine the laboratory conditions essential for the holding of a fair election. We note that there is no evidence here that any employees were unaware of, or misunderstood, their rights or were prevent- ed from voting by the fact that they did not actual- ly see the notice until 2 days before the election. Indeed, the fact that 97 percent of those employees whose names appeared on the eligibility list voted establishes that the employees were well aware of the time, place, and date of the election. In these circumstances, we cannot agree with the Regional Director that the Employer, by posting the elec- tion notices as it did, engaged in conduct which in- terfered with the employees' free choice in the election. Accordingly, we hereby overrule Peti- tioner's Objection 2.7 The names of these individuals did not appear on the eligibilty list. 8 Three employees whose names appeared on the eligibility list did not vote in the election. I Member Penello notes that this conclusion is consistent with the view expressed in his dissenting opinion in Kilgore Corporation, 203 NLRB 118 (1973). Member Truesdale, as he stated in Printhouse Company, Inc. and Denni- son Ticket,. Printhouse Division, 246 NLRB No. 112 (1979), and in his dis- senting opinion in Kane Industries, a Division of Chromalloy American Cor- poration, 246 NLRB No. 111 (1979), continues to adhere to the principles established in Kilgore Corporation and would look to the facts of each case to determine whether the employees had sufficient opportunity to be informed of the details of the election and their rights under the Act, and to discuss the issues of the election. In concluding that the posting here was sufficient to achieve these ends, Member Truesdale notes particularly the conspicuous nature of the posting near the unit employees' timeclock for at least 2 days prior to the election, and the fact that 97 percent of the employees whose names appeared on the Excelsior list voted in the election. ORDER It is hereby ordered that the Regional Director for Region 26 shall, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, and within 10 days from the date of this Decision, open and count the ballots of Milton Atkins, Mary Dorsey, Irby McCain, Carolyn McClain, Early Morton, Carolyn Williams, and Virgil Wright, the challenges to which have been overruled herein, and shall thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said chal- lenged ballots. If the tally discloses that the results of the election are determinative, and the remaining unresolved challenges will not affect the results of the election, the Regional Director shall issue the appropriate certification. However, if the results are not determinative after the aforementioned seven ballots have been opened and counted, and the unresolved challenges still would be determina- tive, a hearing shall be held concerning the eligibil- ity of Hildia Brown, Evelyn Curry, and Cynthia Smith. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions as to the credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of the said issues. Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon filing of such exceptions, the party filing the same shall file a copy with the Regional Director. If no excep- tions 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 26 for further proceedings pursuant hereto. CHAIRMAN FANNING, concurring and dissenting: I would affirm the Regional Director's sustaining of Petitioner's Objection 2 for the reasons set forth in my dissents in Printhouse Company, Inc. and Dennison Ticket, Printhouse Division, 246 NLRB No. 112 (1979), and Kane Industries, a Division of Chromalloy American Corporation, 246 NLRB No. 111 (1979). In all other respects, I concur in the majority decision.