Calcor Corp.

CALCOR CORPORATION 539 such circumstances , finds to be a separate unit appropriate for collective-bargaining purposes. If a majority of the em- ployees in voting group 2 also select a labor organization, the Regional Director conducting the election is instructed to issue a certification of representatives to the labor organiza- tion selected by the employees in that group, which the Board in such circumstances also finds to be a separate unit appro- priate for collective bargaining purposes. However, if a majority of the employees in both voting groups select the same labor organization, they will be deemed to have indicated their desire to constitute a single unit and the Regional Director conducting the election is instructed to issue a certification of representatives to the labor organization selected by the employees in the two groups, which the Board in such circum- stances finds to be a single unit : propriate for the purposes of collective bargaining . If the employees in either or both voting groups do not select a labor organization , the Regional Director conducting the election is instructed to issue a cer- tificate of results of election with respect to each such group or groups. [Text of Direction of Elections omitted from publication.] CALCOR CORPORATION ' and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), Peti- tioner. Case No. 21-RC-2930. July 31, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On May 27, 1953, pursuant to a Decision and Direction of Election issued herein by the Board,' an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Twenty-first Region. Upon con- clusion of the balloting a tally of ballots was issued and served upon the parties hereto in accordance with the Rules and Regulations of the Board. The tally shows that of approximately 231 eligible voters, 211 voted. One hundred ten votes were cast for the Petitioner, 93 for the Intervenor, Local 548, Sheet Metal Workers Inter- national Association, AFL, 7 for no union, and 1 was chal- lenged. On May 28, 1953, the Intervenor filed detailed objections to the conduct of the election, and moved that the election be set aside. After an investigation the Regional Director issued a 'Pursuant to advice of the Employer, the Board on May 19, 1953, ordered that the Em- ployer's name be changed from "California Cornice Steel and Supply Corporation" to "Calcor Corporation." 2 104 NLRB 787. 106 NLRB No. 92. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report on objections ( attached hereto), in which he recommended that the objections be overruled . The Employer and the Inter- venor filed exceptions thereto.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston , Murdock , and Peterson]. 1. The Intervenor and the Employer contend that the list of eligible voters submitted by the Employer inadvertently in- cluded the names of a substantial number of employees hired after May 2, 1953, the eligibility date established pursuant to the Board' s Direction of Election . The Intervenor further contends that the list omitted the names of two employees who were eligible to vote . It is urged that these errors invalidated the election. However , on May 14, 1953 , a copy of the list was given to the Intervenor , which had ample opportunity to check its accuracy before the election . The Intervenor nevertheless challenged no voters as being ineligible , nor arranged to have any unlisted employees vote subject to challenge . Its belated objections on this score are in the nature of post-election challenges , and will not be entertained 4 The Intervenor and the Employer argue that this result is inconsistent with Active Sportswear Company,5 where the Board set aside an election because the eligibility list used was based upon a payroll period other than that directed by the Board. In that case , however, the wrong payroll period was used be- cause of an error by the Board agent in establishing the refer- ence date . Thus the parties ' use of an incorrect list and their failure to challenge any of the names on that list were the result of their compliance with the procedure prescribed for them by an agent of the Board . Accordingly, the Board accepted re- sponsibility for the error and set the election aside. In the present case , the list submitted by the Employer failed to conform to the Board agent ' s correctly established requirement. Because this fact was ascertainable by the Intervenor , through its members in the plant , we will apply here the Board ' s usual rule that the burden rests with the participating unions, not with the Board, to check the accuracy of eligibility lists. The exception is therefore overruled. 2. The Intervenor and the Employer allege that the Petitioner continued its electioneering in the plant past the noon hour on the day of the election , while the Intervenor, pursuant to an assurance it had given the Employer at the Employer's request,' refrained from doing so. It is argued that this alleged disparity in campaigning opportunity invalidated the election . However, we do not believe that the Intervenor' s forbearance to elec- 3 The Petitioner has requested permission to file a brief, replying to the allegations and arguments in these exceptions As we do not sustain the exceptions , however , such a brief would serve no purpose. The request is therefore denied. 4Association of Motion Picture Producers, Inc., 88 NLRB 1097; A J. Tower Co., 329 U S. 324, 332-3, enfg 60 NLRB 1414. 5104 NLRB 1057 CALCOR CORPORATION 541 tioneer during the last few hours before the polls opened rendered improper the alleged electioneering at that time by the Petitioner , which would otherwise have been clearly proper. It is not contended that the Employer forbade the Intervenor to campaign in the plant during those hours . Nor is it contended that the Intervenor ' s forbearance was the result of any agree- ment between it and the Petitioner . The contention is merely that the Employer requested the Intervenor to forbear and that the Intervenor did so in the belief that a similar request was to be made to the Petitioner . In some circumstances , perhaps, a request by an Employer to a union that it refrain from certain election activity might be interpreted as a prohibition, and the Employer ' s failure to address a similar "request" to a rival union might be found tobe improper assistance to the election effort of that rival. In this case , however, any such possibility of assistance to the Petitioner is foreclosed by the fact that the Employer actually entered into a contract with the Intervenor during the pendency of this proceeding. Under these circumstances , the Intervenor ' s failure to electioneer during the afternoon before the election , as the Petitioner allegedly did, would not indicate a sufficient disparity in electioneering opportunity to impel us to set aside the election . It is there- fore unnecessary to resolve the issues of fact as to the Peti- tioner's alleged last -minute campaigning. In addition , the Employer urges that it is always prejudicial for a union to electioneer inside a plant on election day. With this latter contention we do not agree ; there is no such general Board rule. True , electioneering is not permitted in the im- mediate vicinity of the polls while they are open. 6 However, neither the Intervenor nor the Employer makes any contention that this rule was violated by the Petitioner. 3. The Employer contends that it was prejudicial for the Board ' s agent to walk through the plant to the polling place in the company of the Petitioner ' s agent on election day. We do not agree. No inference of Board support of the Petitioner would be likely to be drawn by employees merely because the Board agent courteously accompanied a union representative to inspect the polling place before the election began.' 4. The Intervenor , finally, complains that the Petitioner made use of handbills which were "inflammatory ," "untruth- ful," and "virtually libelous ." In the handbills, the Petitioner accused the Intervenor ' s representative of being untruthful and of making a back -door agreement with the Employer to the effect that the Intervenor would help the Employer "get away with paying as little as possible in wages and other benefits." The Board does not ordinarily pass judgment upon campaign propaganda of, this sort.' It invalidates elections only in those 6 Detroit Creamery Co., 60 NLRB 178. 7 See West Texas Utilities Co., 100 NLRB 1012. 8 Blue Banner Laundry & Cleaners, 100 NLRB 2; Philadelphia Lager Beer Brewers' Assn , 79 NLRB 351. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptional cases in which there has been coercion, gross fraud, or forgery .' We do not regard the present case as falling within that exceptional class of cases. Accordingly, we find that none of the circumstances alleged were sufficient to impair a free choice in the election, and we overrule the objections and exceptions . As the tally shows that a majority of the valid votes have been cast for the Peti- tioner, we shall certify the Petitioner as the col- lective-bargaining representative of the employees in the appropriate unit. [The Board certified International Union, United Automobile, Aircraft , and Agricultural Implement Workers of America (UAW-CIO) as the designated collective -bargaining representa- tive of the employees of Calcor Corporation in the unit found to be appropriate. 9E.g , United Aircraft Corporation, Pratt & Whitney Div , 103 NLRB 102; Timken-Detroit Axle Co., 98 NLRB 790 REPORT ON OBJECTIONS Pursuant to a Decision and Direction of Election of the National Labor Relations Board dated May 5, 1953, a representation election was held on May 27, 1953, among all production employees in the manufacturing division , and all maintenance and plant clerical employees, at Calcor Corporation , Los Angeles , California , plant , hereinafter referred to as the Em- ployer , including employees who manufacture magnesium beams for aircraft , shipping and receiving clerks at all three warehouses, storeroom clerks in both storerooms , and material control employees , to determine if those employees wished to be represented for the purposes of collective bargaining , by Sheet Metal Workers International Association , Local 548, AFL, hereinafter referred to as the Intervenor , or by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), hereinafter referred to as the Petitioner , or by neither of these labor organizations The results of the election, as set forth in a tally of ballots served on all parties on that date , were as follows: Approximate number of eligible voters .... . .......... 231 Void ballots . ..... .. .... ..... .... . . 0 Votes cast for Sheet Metal Workers Int 'l Ass'n Local 548, AFL. ... ... 93 Votes cast for international Union, United Automobile , Aircraft & Agricultural Implement Workers of America , (UAW-CIO) . .. ... .............. 110 Votes cast against participating labor organizations . ... ...... .......... 7 Valid votes counted ............... . . 210 Challenged ballots 1 Valid votes counted plus challenged ballots 211 A majority of the valid votes has been cast for CIO On May 29, 1953, the Intervenor filed timely objections to conduct affecting the results of the election Copies of said objections were timely served on all parties. Pursuant to Section 102.61 of the National Labor Relations Board Rules and Regulations, Series 6, as amended , the undersigned , after reasonable notice to all parties to present relevant evidence, has completed the investigation of the objections , has reviewed all state- ments made by witnesses , and carefully considered all other evidence submitted by the parties and hereby issues his report thereon Although not specifically as stated in the objections , the Intervenor bases the objections on two points as follows: Objection No. 1: In this objection it is alleged that due to the Employer submitting an in- accurate list of eligible voters, employees not eligible to vote , voted in the election. ANDERSON AIR ACTIVITIES 543 Objection No. 2: In this objection it is alleged that a paid representative of the Petitioner campaigned and passed out handbills in the plant just prior to the election , while at the same time, at the request of the Employer , the representative of the Intervenor refrained from such activity. Investigation of objection No. 1 discloses that the Employer erroneously included in the list of eligible voters the names of 23 employees who were hired after May 2, 1953 , the date of eligibility . Of the 23 employees , 10 did not vote . Thirteen ineligible voters voted in the election. At an informal preelection conference on May 14, 1953, both the Petitioner and the Inter- venor (the incumbent union) were given copies of the list of eligible voters and had, there- fore, ample opportunity to check the list of eligible voters and to challenge the vote of any voter whom they believed to be eligible. It is a well-established Board policy that post -election challenges will not be considered. The undersigned is of the opinion that this case is distinguishable from Active Sportswear Co., Inc . 104 NLRB 1057 . In that case the Board agent erroneously established as the date of eligibility a date subsequent to the date of eligibility directed in the Direction of Election. Therefore , the parties were'led into a failure to challenge the vote of an employee who was hired after the date of eligibility established in the Direction of Election but prior to the date of eligibility established by the Board agent . Therefore , the undersigned is of the opinion that this objection is without merit. Investigation of objection No. 2 fails to reveal any evidence that a representative of the Petitioner campaigned or passed out handbills in the plant just prior to or during the time that the election was being conducted . In support of this objection, the Intervenor contends that a representative of the Petitioner entered the plant shortly before the start of the elec- tion, campaigned , and passed out handbills to the employees . The Intervenor failed to submit the names of any witnesses who could support the contentions. The Employer records the time of arrival and departure of all visitors to the plant. This record shows that D. L. Garriga , i. representative of the Petitioner , and Floyd Brewer, the Board agent who conducted the election , both entered the plant at 3.05 p . m. This record fur- ther shows that D. L. Garriga left the plant at 3:15 p. m., 15 minutes prior to the start of the election. The Board agent says that he and Garriga entered the plant together; that Garriga inspected the polling place; talked to the observers , then, at the request of the Board agent, left the polling place . The Board agent is of the opinion that Garriga was in the polling place for at least 10 minutes . Therefore, it appears that when Garriga left the polling area he immediately left the plant . Since the Employers records show that Gar riga left the plant 15 minutes prior to the start of the election , and was not readmitted prior to the election, he could not have been electioneering at or near the polling place during the election. In an affidavit Garriga denies that he either campaigned or distributed handbills while in the plant. It appears that this objection is without merit. The undersigned is of the opinion that the objections do not raise material or substantial issues with respect to conduct affecting the results of the election and, therefore , recom- mends that the objections be overruled. ANDERSON AIR ACTIVITIES and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C.I.O., Petitioner. Case No. 14-RC-2113. July 31, 1953 SUPPLEMENTAL DECISION , ORDER, AND SECOND DIRECTION OF ELECTION Pursuant to a Decision and Direction of Election issued herein on April 22, 1953 ,1 an election by secret ballot was conducted on May 14, 1953, under the direction and supervision of the Regional Director for the Fourteenth Region, among 1104 NLRB 306. 106 NLRB No. 93.