Minnesota Mining & Manufacturing Co.

In the Matter of MINNESOTA MINING & MANUFACTURING COMPANY and MINNESOTA MINING EMPLOYEES INDEPENDENT UNION' Case No. 18-8-979 SUPPLEMENTAL DECISION ORDER SETTING ASIDE ELECTION AND DIRECTION OF SECOND RUN-OFF ELECTION April 23, 1945 On July 20, 1944, the National Labor Relations Board issued a Deci- sion, Direction of Election, and Order 1 in the above-entitled proceed- ing, wherein it found that certain production and maintenance employees of Minnesota Mining S, Manufacturing Company, St. Paul, Minnesota, herein called the Company, constituted an appropriate unit and directed that an election be held among such employees to determine whether they desired to be represented by Minnesota Min- ing Employees Independent Union, herein called the Independent, or by United Gas, Coke & Chemical Workers, Local 75, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., or by the American Federation of Labor, for the purposes of collective bargaining, or by none.2 Pursuant to the Board's Direction of Elec- tion, an election was conducted by the Regional Director for the Eighteenth Region on August 17 and 18.3 When the result of the election proved inconclusive, and the leading organizations desired that a run-off election be held, the Regional Director, on September 14 and 15, conducted a run-off election wherein the C. I. O. and the Inde- pendent participated. The results of the balloting in the run-off election were as follows : ' 57 N L R. B. 494 2 More specifically, the Board found that all production and maintenance employees of the Company at its St Paul plant and warehouse, including machine shop employees and receiving-department employees, but excluding the boiler room employees, clerical em- ployees other than clerks in the machine shop, office employees, watchmen, guards, leadmen, assistant foremen, foremen, and any other supervisory employees, constituted an appro- priate bargaining unit This finding resulted in the dismissal of three other petitions, wherein craft organizations affiliated with the American Federation of Laboi proposed separate craft units among these employees The Board permitted the American Federa- tion of Labor, as their common parent body, to participate in the election held among employees in the appropriate unit 3 All dates refer to the calendar year 1944 , unless otherwise noted. 61 N. L. R. B., No. 110. 697 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximate number of eligible voters--------------------- 2,315 Valid votes counted--------------------------------------- 1,758 Votes cast for the Independent----------------------------- 886 Votes cast for the C. I. 0---------------------------------- 872 Challenged ballots ---------------------------------------- 15 Void ballots---------------------------------------------- 11 On September 19, the C. I. O. filed objections to the conduct of the run-off election. On October 6, the Regional Director issued his Re- port on Objections, stating that he had investigated the objections filed by the C. I. O. and, as a result of his findings, recommended that the Board direct a, hearing thereon. On October 10, the Company and the Independent filed Exceptions to the Regional Director's Report on Objections. On October 14, the Board directed that the Regional Director in- vestigate the challenged ballots and report back his findings with re- spect to the validity of the challenges. On October 18, the Regional Director issued and duly served upon the parties his Report on the Challenges. The Regional Director, for reasons stated, found that two challenged voters, namely, Betty Rouchwater and D. Wolken- torfer, were ineligible to vote and recommended' that the Board sustain the challenges with respect to their ballots. No exceptions were taken to the Regional Director's report and recommendations. Under these circumstances, we shall adopt the Regional Director's findings with respect to the status of Betty Rouchwater and D. Wolkentorfer, and find them ineligible voters, and do hereby declare that their ballots are void and shall not be counted. Since the other challenged ballots would not affect the results of the election, the Regional Director made no recommendation concerning them, and we shall make no finding with respect to their validity. On November 2, the Board issued an order, remanding the case to the Regional Director for hearing on the objections to the conduct of the run-off election. Pursuant to notice, the hearing was held be- tween November 17 and 27, at St. Paul, Minnesota, before Henry J. Kent, Trial Examiner. The Board, the 'Company, the C. I. 0., and the Independent appeared, participated, and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues. During the course of the hearing the Company and the Independent moved that the objections be overruled. The Trial Examiner referred the motion to the Board. For reasons which appear below, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Among its objections, the C. 1. 0. alleges that the Company assisted the Independent by discussing and negotiating grievances with repre- MINNESOTA MINING & MANUFACTURING COMPANY 699 sentatives of the Independent, thus prejudicing employees against the C. 1. 0. and influencing them to vote for the Independent. The record discloses two incidents of grievance procedure which we believe have a direct bearing upon the issues raised in respect to the validity of the run-off election. John McDonough, an employee of the Company, was inducted into the armed services on June 16, 1942, and discharged for medical reasons on April 28, 1943. He applied for work at the Company's plant in May 1943, and was given some trucking work to do. When McDonough complained that the work was too hard for him, he was given a medical examination and subsequently released from the Com- pany's service on the ground that there was no work then available of which he was capable. On February 2,1944, the Company reemployed McDonough as a new employee. McDonough claimed that he was thus unjustly deprived of his seniority rights for the period between his re- lease in 1943 and his reemployment in 1944. McDonough talked a good deal about his grievance to anyone who would listen. McDon- ough was well identified as a supporter of the C. 1. 0. During the election campaigns, the C. I. O. made a point of promising relief to service men with grievances. In order to attract to the Independent employees who were being drawn to the C. 1. 0. by reason of these promises, the officers of the Independent determined to settle some grievances. - On September 7, when Francis O'Malley and Lyden Hathaway, employees of the Company and president and vice president of the Independent respectively, were on leave without pay and, unchallenged by any supervisory employees, were passing through the plant to solicit signatures for the Independent's first circular contrary to the Com- pany's rules, they calve upon McDonough at work in his department and talked with him about his grievance. After some discussion, O'Malley promised McDonough that the officers of the Independent would consult Ivan Lawrence, chief personnel officer of the Company, on McDonough's behalf. On the next day, O'Malley and Ralph Berres, employee of the Com- pany and treasurer of the Independent, met Michael Taube,4 employee counselor under Lyle Fisher, the plant personnel manager under Law- rence, in front of the plant as Taube was on his way to interview McDonough about his grievance. Unchallenged, the three men entered * The meeting of Taube, O'Malley, and Berres may have been a coincidence , as each testified In the absence of credible evidence to the contrary, however, we assume that O'Malley kept his promise to McDonough to consult Lawrence on McDonough's behalf. It seems curious, otherwise , that the incident related above occurred the day after O'Malley and Hathaway had interviewed McDonough, promising to- refer the matter to Lawrence, who, through Fisher, was Taube's superior . Neither O'Malley nor Berres otherwise ex- plained their presence at the plant at this opportune time. Neither of them was working (luring this shift. Earlier in the day they had distributed circulars for the Independent. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant,-' and proceeded to the tape packing department. McDo- nough, who was in the stockroom at the time, was formally summoned by telephone (used only for official business) and found the three men at or near the foreman's desk in the department. Berres "introduced" McDonough to Taube. Berres then sauntered about the department talking freely to employees, especially to one who he remembered had deserted the Independent for the C. I. 0., and he examined some new machinery which had been installed. The official investigation of McDonough's grievance continued meanwhile. According to Taube, Taube carried on the entire interview with McDonough, and O'Malley merely listened. According to O'Malley and McDonough, Taube and O'Malley both actively participated in the grievance conference. McDonough told the men that the Company had given him a "medical leave" when he quit his job in the trucking department in 1943, that he had seen a letter to that effect, and that it was shown to him by Foreman Flaherty. Taube thereupon called Flaherty, the foreman of the department, into the conference. Flaherty denied ever having seen the letter described by McDonough, and Taube searched his file for it. The conference, which lasted from 10 to 20 minutes, ended with Taube's assurance to McDonough that he would endeavor to find the letter to which McDonough had referred. A few days later, McDo- nough was called to Fisher's office and was told that the letter affirming his medical leave had been found. Taube was present at this conference. Lawrence, subsequently questioning Taube concerning the details of his earlier conference with McDonough, at which O'Malley and Berres were also present, reprimanded Taube for permitting O'Malley and Berres to accompany him, in view of their official positions with the Independent. Taube denied to Lawrence any knowledge of O'Malley's and Berres' official status in the Independent. Lawrence pointed out to Taube, but not to other employees, the impropriety of the presence of O'Malley and Berres at the official conference.e No further action was ever taken with respect to remedying McDonough's grievance. The Company contends that since it failed to give complete satis- faction to McDonough at the request of the Independent, the incident 6 The record is not clear whether Taube especially invited , or merely suffered, the two officers of the Independent to accompany him, and we find it immaterial to the issues. 6 On August 22, about 2 weeks before the McDonough incident, a somewhat similar grievance procedure was enacted , when other representatives of the Independent , admit- tedly contrary to the Company 's rules, attempted "prematurely" to function as bargaining representative for girls temporarily employed in the tape department and about to be released from work , and were sharply rebuked by Superintendent Meyer Although Meyer, unlike Lawrence in the McDonough case , thereafter took occasion to call employees in his department together and to try to disabuse their minds as to the Company 's recog- nition of the Independent as representative of its employees , there is no gauge by which we may measure what coercive effect the incident may have had upon employees throughout the plant to whose attentipn the matter may have come, MINNESOTA MINING & MANUFACTURING COMPANY 701 described above has no bearing upon the conduct of the election. We do not agree. The conference into which Taube especially called McDonough from his work purported to be an official- conference be- tween him and a representative of the personnel department, in which Foreman Flaherty assisted and officers of the Independent partici- pated. The conference was held during working hours, in view not only of employees regularly working in the department during that shift, but also of employees whose ordinary duties took them through the departments on that and other working days. The subsequent finding of the letter must be fairly attributed to the efforts of the In- dependent, and the letter was the primary evidence upon which McDonough based his alleged grievance and upon the finding of which any success of his case was predicated. That the Company did not within the few days remaining before the run-off election, or there- after, announce a final decision favorable to the aggrieved McDonough certainly does not nullify the prejudicial effect of the grievance con- ference opportunely staged shortly before the run-off election through the joint efforts of the Company and the Independent. Lawrence clearly recognized the discriminatory effect of the conference when he reprimanded Taube for allowing the officials of the Independent to accompany the latter and to participate therein. Neither Lawrence nor anyone else in authority at the factory took any steps to dispel the obvious inference to be drawn from the incident, that the Com- pany, through its selection of representatives to participate in a con- ference on a well-known grievance matter, had tacitly pointed out the bargaining agency through which it preferred to deal in matters affecting its employees. Such conduct is obviously discriminatory. The close results of the election clearly indicate that the vote of a few employees may determine the choice of a bargaining representative for all employees in the appropriate unit. We cannot measure exactly what effect the staging of this bargaining conference concerning McDonough's grievance upon the department floor during working hours, or the attempt to remedy the grievance of the temporary em- ployees, noted above, may have had upon employees who witnessed it or who heard of it through onlookers, and it is not necessary that we do so. Rather than to rely on the results of an election prefaced by conduct which may have seriously impaired the free choice of em- ployees in designating their bargaining representative, we prefer to hold a new election, We shall, accordingly, set aside the results of the run-off election conducted on September 14 and 15, and direct a new run-off election.' Under these circumstances , w e find it unnecessary to consider other evidence included in the record in support of other objections noted by the C. I. O. with respect to the conduct of the election. 639678-45-vol 61-46 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the recommendation of the Regional Director , and in view of the lapse of time, we shall direct that the second run-off election be held without further delay. ORDER The National Labor Relations Board hereby vacates and sets aside the run-off election conducted in this proceeding on September 14 and 15, 1944. DIRECTION FOR A SECOND RUN-OFF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa tives for the purposes of collective bargaining with Minnesota Mining & Manufacturing Company, St . Paul, Minnesota, a second run-off elec- tion by secret ballot shall be conducted as early as possible , but not later than thirty ( 30) days from the date of this Direction , under the direction and supervision of the Regional Director for the Eighteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9 and 10, of said Rules and Regulations, among the employees described in the Direction of Elec- tion issued on July 20, 1944, but excluding those who have since quit or been discharged for cause , and have not been rehired or reinstated prior to the date of the second run-off election, to determine whether they desire to be represented by Minnesota Mining Employees Inde- pendent Union , or by United Gas, Coke and Chemical Workers, Local 75, affiliated with the Congress of Industrial Organizations , for the purposes of collective bargaining , or by neither.