General Steel Tank Co., Inc.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GENERAL STEEL TANK COMPANY, INC. and INTERNATIONAL BROTH- ERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS , BLACKSMITHS, FORGERS, AND HELPERS OF AMERICA, AFL, PETITIONER . Case No. 10-RC-2871. January 14,1955 Decision and Certification of Results of Election On September 15, 1954, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted un- der the direction and supervision of the Regional Director for the Tenth Region among the employees in the agreed appropriate unit. Following the election, the Regional Director served on the parties a tally of ballots, which showed that of approximately 111 eligible voters 110 cast ballots, of which 54 were for the Petitioner; 54 were against the Petitioner; and 2 were challenged. The challenged bal- lots were sufficient in number to affect the results of the election. On September 20, 1954, the Petitioner timely filed and served ob- jections to conduct affecting the results of the election. In accord- ance with the Rules and Regulations of the Board, the Regional Di- rector conducted an investigation, and on October 19, 1954, issued and duly served upon the parties his report on election, objections to election, challenged ballots, and recommendations to the Board. In his report, the Regional Director found that the Petitioner's ob- jections raised no substantial or material issues which would justify setting aside the election, and recommended that the objections be overruled. He further found that one of the challenges should be overruled. Inasmuch as this challenge involved the validity of a ballot marked in the "No" space in both lead and red pencil, which he found was valid and constituted a vote against the Petitioner, the Regional Director concluded that the remaining challenge could not affect the results of the election, and recommend that it not be opened and counted. Accordingly, he recommended that the Board certify that the Petitioner is not the exclusive representative of the em- ployees involved herein because it had failed to obtain the required majority vote in the election. To this report the Petitioner filed timely exceptions. The Board has reviewed the stipulation of the parties, the Peti- tioner's objections, the Regional Director's report on objections. and challenges, the Petitioner's exceptions thereto, and the entire record in this case and hereby adopts the findings, conclusions, and recom- mendations of the Regional Director with the modifications indicated below. Upon the entire record in the case, the Board makes the following findings of fact. 111 NLRB No. 30. GENERAL STEEL TANK COMPANY, INC. 223 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All pro- duction and maintenance employees employed by the Employer at Birmingham, Alabama, excluding office clerical employees, plant clerical employees, truckdrivers, guards and/or watchmen, profes- sional employees, and all supervisors as defined in the Act. 5. As noted above, the tally of ballots shows a tie vote with 2 chal- lenges, 1 of which brings into issue the validity of the ballot. The Petitioner's objections to the conduct of the election are based, in substance, on allegations (a) that a plant guard, on behalf of the Employer, engaged in electioneering by distributing campaign litera- ture to employees within 30 feet of the polling place "while the elec- tion was being set up," and also, during voting hours (objections Nos. 1 and 4) ; (b) that the Board agent in charge of the election erred in not requiring leadermen to execute affidavits concerning their supervisory authority before casting their ballots (objection No. 2) ; and (c) that the literature distributed by the plant guard, and certain statements made by allegedly supervisory individuals to employees contained threats and promises of benefits (objection No. 3). Concerning the issues raised by the Petitioner in objections Nos. 1 and 4, the Regional Director's report discloses that a plant guard distributed leaflets at a gate only a short distance from the location of the polls before the polls opened. The Petitioner's allegation that this incident occurred during voting time was supported only by the Petitioner's election observer who claimed that he saw through a window a guard giving leaflets to employees as they passed through the gate between 3 and 3: 30 p. in. at a time when the polling was in progress. The guard denied this allegation claiming that he ceased distributing leaflets before that time. There is no evidence by any employee that he received a leaflet from the guard after 3 p. in. when the polls opened. A check of the time clock disclosed that 12 em- ployees entered the plant after 3 p. in. Of these, six selected at ran- dom were interviewed and denied receiving or having seen the leaflet in question. The Petitioner, in its exceptions, urges that a hearing should be held to resolve the issues created by its objections Nos. 1 and 4. The 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner also urges that the method of investigation was insufficient and was not a fair determination because only 6 of the 12 employees entering the plant after 3 p. in. were interviewed by the Board agent. We find no merit in these exceptions. In the interest of maintaining a free and untrammeled election, the Board has adopted the policy of prohibiting electioneering within a specified area near the polls while voting is in progress. Here, neither the evidence presented by the Petitioner, nor the information de- veloped on investigation, establishes that the leaflets were distributed after the polls opened within the prohibited area. Moreover, we are satisfied that the Regional Director conducted a sufficient investigation to ascertain this fact.' Accordingly, in agreement with the Regional Director, we overrule Petitioner's objections Nos. 1 and 4. With respect to objection No. 2, the Regional Director's report dis- closes that the parties had agreed in discussions leading to the execu- tion of the election agreement that leadermen were not supervisors and were therefore to be included in the unit; that just before the polls were opened the Petitioner, allegedly on the basis of newly discovered information, raised an issue as to the status of some, or all, of the leadermen and asked the Board agent to require each leaderman to execute an affidavit to the effect that he was not a supervisor; that the request was refused, but the Board agent explained to the Petitioner's representative about his right to challenge when leadermen appeared to vote; and, that the Petitioner elected not to challenge the leader- men's ballots. The Petitioner does not dispute these facts, and does not offer evi- dence to prove that any of the leadermen whom it agreed to include in the unit possess supervisory authority. Rather, in its exceptions, it urges that it was the duty of the Board to determine the super- visory status of leadermen, by hearing if necessary, and to insure that supervisors were not permitted to participate in the election. As noted above, the Petitioner failed to challenge the ballots of leadermen when they appeared to vote with full knowledge of its right to do so. Its objection, therefore is in the nature of a post-election challenge which, under the established practice of the Board, is not entitled to consideration.' Accordingly, we hereby overrule this objection. In support of objection No. 3, the Petitioner offered the leaflet dis- tributed by the guard, referred to above and substantially quoted in the Regional Director's report. Like the Regional Director, we see no threat or promise in this leaflet, and find that the contents fall within the protective ambit of Section 8 (c) of the Act.' 1Cf Radio Corporation of America ( Victor Division ), 90 NLRB 1989, 1991. Oppenlaeim Collins it Co., 108 NLRB 1257 - See A S Abell Company (TVMAR-TV), 107 NLRB 362. GENERAL STEEL TANK COMPANY, IN C. 225 One of the statements also alleged by the Petitioner to constitute a promise of benefit was made by Eugene Beasley, an employee classi- fied by the Employer as a fitter but alleged by the Petitioner to be a leaderman. The Petitioner has presented no evidence that Beasley is a leaderman or that he or any other leaderman possesses supervisory authority. This statement, therefore, amounts to no more than a per- missible expression of an employee's opinion. A witness for the Petitioner stated that on the day before the elec- tion his foreman, "Red" Curd, came to the place where the employee and others were working, talked with the employees, and showed them a book containing wage rates for various jobs in similar plants. This witness also stated that Curd told the employees that their rates were so good that the Petitioner could not help them; that thereupon, dur- ing this conversation Beasley mentioned something about a 10-cent raise, and that Curd replied, "Yes, but I can't promise anything, but I think you will find it brighter after the election." The statements of other witnesses, however, create a conflict in fact of whether any mention was made with respect to a 10-cent raise in this conversation. Foreman Curd denied that he promised anything. Assuming the evi- dence most favorable to the Petitioner's position, we find that, under all the circumstances, Curd's statement is insufficient to warrant set- ting aside the election.4 As noted above, one of the challenges was in the nature of a ques- tion of whether the ballot is void in view of the fact that it was marked in the "No" box by both a lead and a red pencil. The Board has held that a ballot is valid where the voter's intent is clearly indi- cated.' The Petitioner excepts to the Regional Director's finding that the ballot is valid because the Employer's observer used a red pencil during the election. The Petitioner urges that the influence to be drawn is that the ballot was marked by the Employer's observer for identification purposes. We do not agree that this is a necessary infer- ence to be drawn, nor that the ballot, because of the red marking, was necessarily identifiable.' As the intent of the voter is clear, we find that the ballot is valid. As the remaining challenge cannot affect the results of the election,' and the Petitioner has failed to secure a majority of the valid ballots 4 Although not included in its objections, the Petitioner seems to contend that Foreman Curd's talk with his employees was made within the 24-hour period before the polls were opened and therefore invalidated the election . As no such objection was timely filed, we find that it may not serve as a basis for setting the election aside. Moreover , we find that the evidence does not establish that Curd's conversation with a group of employees was other than an informal and nonpartisan talk or that it was made within the prohibited 24-hour period Cf. National Petro-Chemicals Corporation, 107 NLRB 1610 5 American Cable & Radio Corporation, 107 NLRB 1090; Genet at Motors Corporation, Central Foundry Division, 107 NLRB 1096. 9 Cf Security Enterprise Division of Indianapolis Were Bound Box Company, 108 NLRB 605 7 7 For this reason we find it unnecessary to pass on the Regional Director's finding with respect to that employee's inclusion in the unit and consequent eligibility to vote. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cast, we shall, in accordance with the recommendation of the Regional Director, certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers, and Helpers of America, AFL, and that the said labor organization is not the exclusive representative of the em- ployees of the Employer.] JOHN W. THOMAS CO., PETITIONER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1086 , A. F. of L . Case No. 18-RM-157. Jan- uary 17,1955 Supplemental Decision and Certification of Results of Election Pursuant to a Decision and Direction of Election issued herein on August 19, 1954,1 an election by secret ballot was conducted on Sep- tember 9,, 1954, under the direction of the Regional Director for the Eighteenth Region, among the employees of the Employer in the unit found appropriate by the Board. At the close of the election, the par- ties were furnished a tally of ballots. The tally shows that, of approxi- mately 325 eligible voters, 134 voted for and 134 voted against the Union. There were also four challenged ballots. On September 15, 1954, the Union filed objections to the election. The Regional Director investigated the objections and the challenges, which were sufficient in number to affect the election results. On September 24, 1954, the Regional Director issued a report and recom- mendation on objections and challenged ballots. In this report, the Regional Director found that the Union's objections were without merit and recommended that they be overruled. He further recom- mended that the challenges to all four ballots be sustained. The Union thereafter filed timely exceptions to part of the Regional Direc- tor's report. The Objections 1. With respect to the Union's first objection, the Regional Director found that the Employer's president and store superintendent made brief announcements to the employees over the Employer's department store public address system shortly before the store opened for business on the day of the election. The Employer's president reminded the employees of the Board election which was to be held that afternoon and urged all employees to vote. The store superintendent referred to the eligibility date for voting and pointed out that "on call" and "ex- 1 Not reported in printed volume of Board Decisions and Orders. 111 NLRB No. 37.