Q-F Wholesalers, Inc.

In the Matter of Q-F WHOLESALERS, INC., EMPLOYER AND PETITIONER and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 676, AFL, UNION Case No..4-RM-38 SUPPLEMENTAL DECISION AND ORDER December 16,19419 On August 30, 1949, pursuant to a Decision and Direction of Elec- tion issued by the Board on August 8, 1949,1 an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fourth Region, among the employees of the Em- ployer in the unit found appropriate. At the close of the election a Tally of Ballots was furnished the parties. The tally shows that 11 ballots were cast, of which 5 were for the Union, 5 were against the Union and 1 was void. Thereafter, the Union filed timely objections to conduct affecting the results of the election. It asserted that certain activity of the Employer prior to the election, and the manner in which the election was conducted, prevented a free choice by the employees in the ballot- ing, and requested that the election be set aside. On October 13, 1949, after all investigation, the Regional Director issued, and duly served upon the parties, his "Report and Recommendations on Objections," in which he found that the objections did not raise substantial and material issues, and recommended that all the objections be dismissed. On October 19, 1949, the Union filed exceptions to the Regional Director's Report. Upon the basis of the Union's Objections to Election, the Regional Director's Report and Recommendations on Objections, the Union's exceptions, and the entire record in the case, the Board finds : 2 1 Q-F Wholesalers, Inc., 85 NLRB 582. 2 As the Union did not submit any evidence supporting its second and fourth objections, and as no exceptions have been taken to the Regional Director 's findings concerning these objections in which he found no merit, we affirm the Regional Director 's findings in this respect. 87 NLRB No. 129. . 1035 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Objections 1 and 3: The substance of these objections is that the Employer engaged in a course of conduct which was coercive, and thereby did not allow the employees to exercise the freedom of choice contemplated by the Act. These objections rest primarily on a letter circulated and read to the assembled employees in the unit on August 27, 1949, by the Employer's division personnel manager, Hoke Smith Simpson. The Regional Director found that the statements con- tained in this letter were within the area of free speech as defined in Section 8 (c) of the Act. He further found that Simpson's state- ment at this meeting did not exceed the bounds of permissible expression.3 The Union excepts to the Regional Director's findings, contending that he took an unrealistic view of the circumstances surrounding the issuance of the letter and the speech made by Simpson, because he did not rely upon the impression that was left with the employees. Although the letter clearly indicated the Employer's preference for dealing directly with its employees rather than through a labor organization, it contained no threat of reprisal or force, or promise of benefit, and made it clear that the employees were free to vote as they choose. We agree with the Regional Director that an allega- tion of coercion and interference with the freedom of the ballot cannot be sustained on the basis of an impression that may have been left by privileged actions or remarks. We find that the letter circulated by the Employer, and the speech made by Simpson did not interfere with the election, and that the employees were not precluded from express- ing a free choice in the election. Accordingly, we shall overrule these objections.' . Objection 5: The Union contends that the results of the election do not reflect the true wishes of the employees for the reason that (a) the election was improperly and irregularly conducted, and (b) the ballots were not properly counted and the results were improperly recorded. (a) In support of its contention that the election was improperly and irregularly conducted, the Union alleges that (1) although the Employer had an observer present at the election, the Union was not accorded a similar privilege; (2) one of the employees was not per- mitted sufficient time in which to vote; (3) a blank ballot which was declared void, was not an unmarked ballot, but one on which an em- ployee had attempted to vote for the Union; and (4) the polling place was so situated that surveillance by the Employer's officials was possible. 8 An employee alleged that Simpson's remarks left him and other employees with the impression that the Employer was against unions. 4 Meyer i Welch, Inc., 85 NLRB 706 ; L. H. Butcher Company, 81 NLRB 1184. Q-F WHOLESALERS, INC. 1087 1. The Regional Director, reporting on the circumstances of the election, stated that an employee, Charles S. Bunn, claimed that he presented himself to the Board agent as the designated observer for the Union on the day of the election, but the Board agent refused to allow him to act as an observer. This statement was corroborated by that of one of the Union's representatives, who stated that Bunn was about 15 minutes late in coming to the polling place. These statements were contradicted by those of the Board agent and the Employer's observer. The Regional Director found that the affidavit submitted in support of this objection is lacking in substantial evidence, and that the evidence presented showed that the Union had ample op- portunity of having an observer at the election, but failed to take advantage of this privilege. The Union, in its exceptions, alleges that in a preelection conference, a Board agent was told that Bunn would be an observer for the Union at the election, but that a different Board agent, who was substituted for the one originally scheduled to conduct the election, was un- acquainted with the name of its observer. The Union contends that the evidence clearly establishes that the Board agent refused to permit Bunn to act as an observer, upon his request to do so. Even if we assume that all the allegations made by the Union are true, we find that no prejudice resulted to the Union from a failure to permit Bunn to act as union observer. The facts show that all eligible employees had an opportunity to and did exercise their franchise. There is no contention that any ineligible employees voted nor that the Board's agents conducting the elections improperly carried out their functions. We do not believe that the employees' exercise of their right freely to choose a bargaining representative was interfered with in any way by the alleged failure of the Union to have an observer present at the election 5 To set the election aside under these circumstances as our dissenting colleagues urge, would be to exalt form over substance. 2. The Regional Director's investigation disclosed that Edward Marley, an employee, entered the polling place at 8 a. in., the time for the closing of the polls. He was given a ballot and told to go into the voting booth. When he came out of the booth, he dropped a folded ballot into the ballot box. Just prior to Marley's arrival at the polling place, a person outside the room asked in a loud voice whether the election was over, and someone shouted back, "Oh, about ' The practice of having any observers at an election , other than the Board 's agents, is one which is not required by the statute but is a matter exclusively within the discretion of the Board . Marlin-Rockwell Corporation v. N. L. R. B., 116 F. 2d 586-588 (C. A. 2), cert. den. 313 U. S. 514; Southern Steamship Company v . N. L. R. B., 316 U. S. 31, 37; Semi-Steel Casting Company v. N. L. R. B., 160 F. 2d 388, 393 ( C. A. B), cert. den. 332 U. S. 758. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30 seconds more." Drarley asserted that lie was told by the Board agent that he had only 30.seconds in which to vote, and therefore voted hastily. The Regional Director found that Marley was given ample time in which to vote, and that his contention of being hurried is not sustained. The Union, in its exceptions to this finding by the Regional Director, argues that although this statement was not directed at Marley, nothing was done to dissipate his impression that it was, and Marley had a right to rely on this statement. No contention is made that because of this statement Marley cast a ballot which was contrary to the way he wished to vote. There is no evidence that at the time Marley made any complaint about being hurried, or requested more time in which to vote. We find that Marley was given ample opportunity to express his true desires as to a bargaining representative. 3. When the ballots were counted at the close of the election, it was found that one ballot was unmarked, and it was declared void. The ballot was shown to representatives of the Employer and the Union who were present to witness the opening of the ballot box and the counting and tallying of the votes. No protest was registered at the time concerning this ballot. The reported facts show that a pencil used in the voting booth, which was originally sharpened at both ends, was broken at one ends The Regional Director reported that the ballot declared void was thoroughly inspected through a magnifying glass, and that it did not appear that any of the fibers of the paper were broken to indi- cate the possibility of having been marked with a broken pencil. In its exceptions, the Union disputed the Regional Director's find- ing that no fibers of paper on the blank ballot were broken. It contends that a careful examination of this ballot showed a break- ing of the fibers of the paper on the block marked "yes." Our examination of this ballot discloses that there is no merit to the Union's contention that it showed a breaking of the fibers of paper. Inasmuch as it is definitely an unmarked ballot, it must necessarily be declared void. 4. The Regional Director reported that during the course of the election, the Employer's officials were out of sight in an office behind closed doors on the other side of a blank wall at a distance of approxi- mately 75 feet from the polling place, and that .a study of the polling place showed that it would be impossible to survey the balloting e No complaint about the pencil was made by any of the eligible voters on the day of the election. Q-F WHOLESALERS, INC. 1089 'procedure without entering the locker room where the election was held. The Union excepts to this finding on, the ground that" an official of the Employer was in such close proximity to the locker room as to be able to have a conversation with someone inside the room. This contention is made with reference to the conversation in regard to the closing of the polls, noted above in paragraph No. 2. There is no contention made, nor any evidence to indicate, that any of the Em- ployer's officials entered the polling place before the election was over. We find that this statement from outside of the locker room just before the closing of the polls, is insufficient evidence on which to reach a conclusion that there was surveillance of the balloting on the part of the Employer's officials. We do not believe that there has been a showing of such irregular- ity in the conduct of the election as to warrant setting aside the elec- tion. We therefore overrule this objection. (b) In support of its contention that the ballots were not properly counted and the results properly recorded, the Union secured affi- davits from six of the voters attesting to the fact that they had voted for the Union. The Regional Director found that as both parties were witnesses to the opening of the ballot box and the tallying of the ballots, there is no substantiating evidence to support the Union's allegation. Aside from the Regional Director's findings concerning the blank ballot, the Union makes no specific exceptions to this portion of the Regional Director's Report. We find the objection to be without merit, and we hereby overrule it. As we find the Objections to the Election filed by the Union do not raise substantial and material issues of fact, we deem it unneces- sary to order a hearing in this case? Upon the basis of the foregoing findings of fact, we hereby overrule the Union's exceptions to Report and Recommendations on Objections, and adopt the Regional Direc- tor's findings and recommendations. Accordingly, as the Talley of Ballots shows that no collective bargaining representative has been chosen we shall dismiss the petition herein. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBER REYNOLDS, concurring : I agree with Members Murdock and Gray that the Union's objec- tions and exceptions should be overruled. However, with respect to ' See Craddock-Terry Shoe Corporation, 80 NLRB 1239. 877359-50-vol. 87-70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's allegations that it was not accorded the privilege of having an observer present at the election, I agree with my colleagues' con- clusion, but not their rationale. It is true, as they indicate, that the customary practice of having observers at an election is a privilege granted to the parties rather than a right. Nevertheless, since the Board in its discretion has established certain election procedures, in my opinion, it is incumbent upon the Board to make certain that such procedures are impartially applied. Thus, if, as a matter of fact, the Board's agent improperly excluded the Union's observer from the polls and at the same time permitted the Employer to have an observer, this clearly would have been an arbitrary and capricious application of the election rules, irrespective of any prejudice which might have resulted. In these circumstances, I would agree with Chairman Herzog and Member Houston rather than with Members Murdock and Gray that such conduct by a Board agent should not be condoned and I would favor setting aside the election. . However, the Regional Director's Report appears to me to furnish sufficient basis for not setting aside the election. An examination of this report discloses that the Regional Director upon the basis of his investigation found insubstantial evidence to support the Union's contention that it was denied the privilege of having an observer at the election. On the contrary, he found that the Union had ample opportunity to provide an observer, but failed to exercise its privilege. He therefore recommended that the objection be overruled. I am satisfied that the Regional Director's investigation revealed no abuse of discretion on the part of the Board's agent. Under the circum- stances of this case, I would adopt his "Report and Recommendations" on this subject and like Members Murdock and Gray would overrule the Union's objection. CHAIRMAN HERZOG and MEMBER HOUSTON, dissenting in part : Insofar as the objections to this election concerned. the alleged ex- clusion of the Union's observer from the polls, Ave cannot make the assumption which appears to satisfy our colleagues. We believe that orderly, regular, and uniform election procedures are vital to the maintenance of successful use of democratic methods of resolving rep- resentation disputes. One established part of these procedures is the privilege of employer and labor organizations to have an observer present during the election. We would hold a hearing to take sworn testimony to discover the facts; if they disclosed improper exclusion of the union observer, this election should be set aside.