J. I. Case Co.

In the Matter of J. I. CASE COMPANY, EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 18-RC-139 THIRD SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES August 5,1949 On April 15, 1949, the Board, in its Supplemental Decision and Order issued in this proceeding, considered certain of the objections filed by the Employer to the conduct of the run-off election held on December 7 and 8, 1948, among employees in a residual group of pro- duction and maintenance employees sought to be represented by Inter- national Union United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW-CIO, hereinafter referred to as the UAW. The objections considered covered the failure of the Regional Director to comply with a Board order directing him to challenge, segregate, and ianpound the ballots of certain patternmakers and pat- ternmaker apprentices who had voted in the election. We held that although the failure of the Regional Director to segre- gate 12 ballots cast by the patternmakers and their apprentices had impressed an uncertainty upon the results of the election, such fact had not rendered the election void, as the uncertainty might be resolved by deducting 12 votes from the UAW's affirmative vote in order to deter- mine whether the UAW still retained a clear majority of valid votes cast.' Because the result showed 835 valid votes for the UAW'and 833 against the UAW, we held that the UAW would nevertheless not be certified unless, after a consideration of the issues raised by the 10 challenged ballots, the resulting tally gave the UAW a clear majority of all valid votes cast. We therefore directed in our Supplemental Decision and Order, hereinabove referred to, that the Regional Direc- tor investigate the issues raised by the challenged ballots and submit i The original tally showed that there were 2,484 eligible voters, that 1 ,680 votes were cast of which 847 were for the UAW and 833 , igainfit . Ten'-ballots ,were challenged and 15 ballots were declared void. 85 N. L. R. B., No. 104. 576 J. I. CASE COMPANY 577 his report and recommendation with respect thereto. No determina- tion was made as to the validity of the remaining objections filed by the Employer, as it appeared that 'after the issues raised by the chal- lenged ballots had been considered, such objections might become moot. Pursuant to the foregoing order, the Regional Director investi- gated the issues with respect to the challenged ballots and on May 13,' 1949, issued his Report on Challenges. In the Report on Challenges, the Regional Director recommended that the challenges to the ballots of nine employees, including one Alcadio Ramirez, be sustained and that the remaining challenge to the ballot of one John Hoy be over- ruled, but that such ballot be not opened and counted because, in the opinion of the Regional Director, such ballot could not affect the results of the election. In its Exceptions to the Regional Director's Report on Challenges, the Employer opposed both the recommendation of the Regional Di- rector that the challenge to the ballot of Alcadio Ramirez be sustained and also the recommendation that the ballot of John Hoy be not opened and counted. The Employer did not oppose the other recommenda- tions of the Regional Director with respect to the challenged ballots. On June 16, 1949, the Board, in effect, sustained the Employer's ex- ception with respect to the ballot of John Hoy, by directing the Re- gional Director, without prejudice to a consideration of the other exceptions, to open and count the ballot of John Hoy and to submit a revised tally in connection therewith. Pursuant to such direction, the Regional Director submitted a Revised Tally of Ballots which showed that an additional vote had been cast for the UAW, giving the latter a total of 836 valid votes out of a total of 1,669 ballots validly cast.2 In view of the, fact that the UAW has now a majority of 3 votes, we find that it is unnecessary to consider the Employer's excep- tion to the Regional Director's recommendation with respect to the ballot of Alcadio Ramirez, as this ballot, even if found to be cast against the UAW, could not affect the results of the election.3 There remains for disposition certain objections of the Employer to the conduct of the run-off election. Although the contrary was indi- cated in our earlier Supplemental Decision and Order, it is now clear that a consideration of the issues raised by the challenged ballots has 2 The Revised Tally of Ballots showed that there were 2 ,484 eligible voters ; that there were cast 1 ,681 votes of which 848 were for the UAW and 833 against ; that there were 9 unopened challenged ballots and 15 void ballots. 3 In it Exceptions to the Regoinal Director 's Report on Challenges , the Employer raised new objections to the conduct of the election and reiterated the objections previously raised . We cannot consider such objections as having a proper place in exceptions to a report on challenged ballots. Treated as a supplement to its original objections to the conduct of the election , we find that such objections are untimely. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not rendered moot those of the Employer's objections that were not previously considered by the Board. We shall therefore proceed to a consideration of such objections." The objections to be considered are designated by the Employer as D1, D2, and D4 in paragraph II of its objections. In objection Dl the Employer alleges that "In the presence of nu- merous other employees, after at least one employee had marked his ballot in the voting booth, he was asked for his ballot by a Board agent who, after examining it, destroyed it." The Regional Director re- ported that the Board agent had reason to believe that the particular employee had marked his ballot with .a red pencil and that his pur- pose might have been to identify the ballot. This ballot was examined and destroyed when found to be improperly marked. The employee was permitted to cast a new ballot in the usual fashion which was deposited in the ballot box. Although we do not approve of the con- duct of the Board agent in examining the ballot, nevertheless in our opinion the one isolated instance of such an impropriety was insuffi- cient to prejudice the results of the election, as such conduct did not, so far as the participants in the election were concerned, affect the secrecy of the ballot nor did it deprive the particular employee of his right to select a bargaining representative. . In objection D2, the Employer alleges that "At least one employee was instructed and permitted to cast two ballots." The Regional Director's Report explained the circumstances under which this em- ployee was first allowed to cast a challenged ballot and then a regular ballot. It was presumed that the challenged ballot, which was placed in a sealed envelope, was destroyed, as it could not be found after the balloting had been completed. In our opinion, the circumstances surrounding this occurrence do not support the conclusion that the employee in question had been permitted to cast two ballots. However, without undertaking to dispose of this objection on its merits, we may assume, for the purpose of ruling on the objection, that the particular employee had in fact voted twice, and that his second ballot had been cast in favor of the UAW. If, upon this assumption, we are to deduct one vote from the UAW's affirmative vote in order to correct the error, we find that the UAW would still retain a majority of valid votes cast. In objection D4 the Employer alleges "Other.acts, occurrences, and omissions affecting the results of the run-off election," more par- ticularly that the agents of the UAW were engaged in electioneering 4 Not included in our present consideration are objections designated by the Employer as A, B, C, D3, and E. Of these objections, A, B, C, and D3 were covered by' our supple- mental Decision and Order of April 15, 1949. Objection E requires no specific treatment as it is merely a conclusion based upon the preceding objections. J. I. CASE COMPANY 579 in violation of the rules and regulations of the Board. The run-off election was held between the hours of 10 p. in. and midnight on December 7, continuing until 12: 30 a. in. on December 8, and between the hours of 5: 30 a. in. and 7: 30 p. in. on December 8. According to the Employer's specifications submitted in connection with its objec- tions, the voting booths were located in a house situated on an open lawn, approximately 50 feet from the public sidewalk on State Street in Bettendorf, Iowa. The Employer also indicated that the principal employee entrance to its plant was located directly across the street at a distance of 60 feet from the curb in front of the polling place. The Employer charges, in substance, that throughout the period of voting, agents of the UAW stationed themselves at the plant gate and along the sidewalk in front of the polling place at distances which, except in a few instances,' extended at least 40 feet or more from the entrance to the polling place. It is not denied by the Regional Director that the matter of elec- tioneering was 'called to the attention of the Board agent. In fact the Regional Director reports that during the conduct of the elec- tion, and for a period estimated not to exceed 4 minutes, UAW rep- resentatives remained immediately in front of the entrance to the polling place and distributed electioneering material to employees on their way to the polls. However, the Regional Director reports that as soon as the Board agents discovered their presence, the-UAW rep- resentatives were asked to, and did, leave immediately. Moreover, although the Regional Director admits that UAW agents stationed themselves at the entrance to the Employer's plant and dis- tributed electioneering material to employees who arrived at or left the plant entrance, the Regional Director finds that such distribu- tion occurred at a distance of approximately 110 feet from the polling place. The Regional Director adds that all employees who appeared at the polling place with leaflets or other material in their hands were not permitted to enter the polling place until they had discarded all electioneering material. Upon the basis of the foregoing, the Re- gional Director finds that the Board agents had committed no error which could in any way be considered prejudicial to the rights of any party, or which could, in any manner, affect the results of the election. Accordingly, the Regional Director recommended that the Employer's objections be overruled. 5 The Employer contends that in some instances electioneering was conducted at a dis- tance less than 40 feet from the polling area . The Employer alleges that one such in- stance occurred 30 feet from the "doorway" of the polling place and another on the steps thereof, in each of which instances , UAW agents had accosted employees approaching the premises for the purpose of voting, and had distributed certain electioneering material urging employees to vote for the UAW. 857829-50-vol . 8 5--3 8 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In support of the recommendations of the Regional Director, it does not appear, nor is it alleged, that prior to the actual time of balloting any area had been designated or marked-off by the Regional Director as a "no electioneering" area ; neither is there any allegation that the UAW representatives wilfully violated. the Board agent's request to such representatives, when their presence was reported, to leave the area immediately in front of the polling place. In this respect; the situation with which we are here confronted differs substantially from that in Matter of Detroit Creamery Company- and Matter of Kilgore Manufacturing Company,7 cases relied on by the Employer. In the Detroit'Creamery case the Board set aside an election where a union official had without authority invaded the actual premises where balloting was then being conducted. Similarly, in the Kilgore case, the Board set aside an election because a wilful and persistent violation, after an initial warning from Board agents, of the rule against electioneering within an area which had been designated as a "no electioneering" area. We also note. that the same element of tivilfullness, after an initial warning, was found by the Board to be material in Matter of Continental Can Company.8 Upon the record in the present instance, we believe that, whatever deviations from usual election practices may have occurred with re- spect to electioneering during the course of election, they not only lacked the element of wilful violation of Board rules, but were too sporadic in nature to have had any effect upon the election results.9 We find, in accordance with the recommendations of the Regional Director, that the Employer's objections do not raise substantial and material issues regarding the conduct of the election. Accordingly, as a Tally of Ballots shows that a ma-jority of all valid votes counted have been cast for the UAW, we shall certify that organization as the collective bargaining representative of the Employer's employees in the unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, has been designated and selected by the majority of all production and maintenance employees of the J. I. Case Co., at its Bettendorf, Iowa, plant, excluding all tool and die makers, toolroom machine operators, tool and die heat treaters, tool and die makers' 6 60 N. L. R. B. 178, 7 45 N. L. R. B. 469, 8,80 N. L. R. B. 785; 9 Matter of Arteraft Hosieru;C0Jca8iy, 73 N. L. R. B. 808. J. I. CASE COMPANY 581 apprentices, toolroom crib attendants and their leader men, toolroom helpers, die sinkers, die finishers, inspectors on dies, tools, and jigs and tool welders, all of whom work in Department 84 of the Em- ployer's plant, all pattern makers and pattern makers' apprentices,10 employed in Department 281 of the Employer's plant, and all plant protection -employees, professional employees, technical and clerical employees, and all supervisors as defined by the Act, as their rep- resentative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all- such employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. MEMBERS MURDOCK and GRAY took no part in the consideration of the above Third Supplemental Decision and Certification of Rep- resentatives. ]U In our Decision and Direction of Election, issued February 15, 1949 , In Case No. 18-RC-300 (81 N . L. R. B. 651 ), we held that the pattern makers and pattern makers' apprentices employed at the Employer ' s Bettendorf, Iowa , plant might constitute a sepa- rate unit and directed an election among them to determine their desires . As a result of the election the Pattern Makers League of N. A., A. F. L., was certified as the exclusive bargaining representative of the pattern makers.