Dornback Furnace & Foundry Co.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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) andSection2 (6) and (7) of the Act. 4. As stipulated by the parties, the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All tire- changers of the Employer employed at the Greyhound garage located at West Lafayette and 15th Street, Detroit, Michigan, excluding office and plant clerical employees, professional employees, all other em- ployees, and supervisors as defined in the Act. 5. For the reasons here set out we find no merit in the exceptions and we adopt the Regional Director's recommendations that the chal- lenge be sustained and the Petitioner certified. Inasmuch as no issue is raised concerning the recommended finding that Emmons is in charge of the Detroit operation in the absence of his superior, who spends most of his time at another location, no useful purpose would be served by ordering a hearing. On these admitted facts we find that Emmons is a supervisor because he responsibly directs other_ em= ployees within the meaning of Section 2 (11) of the Act. Accordingly, we sustain the challenge to Emmon's ballot,' and as the majority of the ballots were cast in favor of the Petitioner, we shall certify it as the representative of the employees in the appropriate unit. [The Board certified International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW, AFL-CIO), as the designated collective-bargaining representative of the employees of the Employer in the unit herein found appropriate.] I Members Rodgers and Bean disagree with this conclusion on the ground that the Employer's exceptions as a whole do raise a factual issue as to the supervisory character of Emmons, and accordingly they would order a hearing on that question. Dornback Furnace & Foundry Company and International Union, United Automobile, Aircraft & Agricultural Implement Work- ers of America, AFL-CIO, Petitioner. Case No. 8-RC-9500. February 7,1956 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On September 9, 1955, pursuant to a Decision and Direction of Election' issued herein by the Board, an election was conducted in ' Not reported in printed volumes of Board Decisions and Orders. 115 NLRB No. 56. - DORNBACK FURNACE & FOUNDRY COMPANY 351 the unit therein found appropriate under the direction and super- vision of the Regional Director of the Eighth Region. Following the election, the Regional Director issued and served on the parties a tally of ballots, which shows that of approximately 81 eligible voters, 36 ballots were cast for the Petitioner, 24 for Furnace Workers Asso- ciation (Independent), herein called the Intervenor, and 1 against both participating organizations. Nine ballots were challenged and two were void. The challenges were not sufficient in number to affect the results of the election. On September 15, 1955, the Intervenor filed timely objections to conduct which it alleged affected the results of the election. After an investigation, the Regional Director issued a report on objections in which he recommended that the objections be overruled. • Thereafter, on October 26, 1955, the Employer and the Intervenor filed exceptions to the Regional Director's report. Because the Regional Director viewed the exceptions as advancing additional grounds for objections, he issued a supplemental report on objections on October 31, 1955, in which he made further findings and recommendations 2 No excep- tions have been filed to the Regional Director's supplemental report. The Board has reviewed the objections to the election, the Regional Director's report, the Employer's and the Intervenor's exceptions thereto, and the Regional Director's supplemental report. Upon the entire record in this case, the Board finds as follows: A critical objection a involves the validity of two ballots which the Board agent refused to count on the ground that both are void. The Employer contends that each should be counted at least as valid votes cast in computing the total by which a majority is determined. The Intervenor urges that the first ballot, containing an identifying name across its face together with numerical figures across the three boxes, should be counted in the total votes cast, and that the second ballot, containing an "X" in the Intervenor's box, several diagonal lines in the Petitioner's box, and semicircular markings in the "neither" box, should be counted as a vote for the Intervenor 4 Ballots marked in the manner described above clearly are invalid under established Board policy.' We, therefore, adopt the Regional Director's recom- s The Regional Director, although finding that the additional objections -were untimely filed, nevertheless considered the allegations therein on the merits' because they ' related to the conduct of a Board agent, a procedural determination which'we deem proper under the circumstances. 8 If, as asserted by the Intervenor , the 2 ballots held void 'should have been counted as valid ballots , the 9 challenged ballots would then be sufficient to affect the results of the election. - However, as set forth herein, we find that these ballots were properly ruled void and not counted. - 4 While thus contending, that 1 of the 2 disputed ballots reveals a clear intent by the voter to vote for the Intervenor, no claim is made that-the other ballot properly should be considered as indicating any specific choice. - 6 See Gerber Plastic Co., 110 NLRB 269 , at 270; and Laconia Malleable Iron Company, Inc., 95 NLRB 161, at 162. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendation and find that both ballots are void and should not be counted in any manner in computing the results of the election. Another objection is based upon the fact that the Petitioner chal- lenged the ballots of nine voters on the ground that they are super- visors. The Intervenor contends in its exceptions that the challenges were improper, disputing the alleged supervisory status of these in- dividuals. Upon investigation, the Regional Director found that these challenges were proper for the reasons asserted. We agree with his recommendation, however, that there is no necessity for making a final determination concerning these challenges as the number of challenged ballots is insufficient to affect the results of the election. We, therefore, overrule this objection. The Intervenor also objected on the ground that the positions on the ballot of the three ballot choices were not rotated, allegedly resulting in certain illiterate voters casting their ballots in favor of the Peti- tioner, without knowledge that they were voting for that organization. The Regional Director recommended that this objection be overruled because it is established Board practice that individual choices have the same position on all ballots. He also reported that no party ob- jected to this practice at the preelection conference held for settling details of the election, and that any illiterate voters who participated could have requested the Board agent conducting the election to ex- plain the ballots. The Intervenor urges in its exceptions that the Board should reconsider its current practice of not varying the posi- tions of ballot choices, and should permit rotation in accord with the law of Ohio where this election was held. We agree with the Regional Director that there is no merit to this objection. We believe that the Board's uniform practice of not permitting rotation utilized in Board elections throughout the various State and territorial jurisdictions, irrespective of differing local election statutes, has resulted in less confusion to voters than the method suggested by the Intervenor would entail. As we have indicated heretofore, the Board is not required to adhere to voting procedures followed in local political elections 6 The Intervenor asserts that at least one eligible employee was denied the right to vote at the Employer's 103d Street plant because he was late in arriving at the polls, and that this fact was called to the atten- tion of the Board agent prior to the beginning of the voting period at the 45th Street plant. The Regional Director recommended that this objection be overruled because no sufficient reason was given why the employee did not cast his ballot during the scheduled period, and there is no evidence that any eligible employee who appeared at the polls during the voting period was prevented from voting, or that any em- ployee presented himself to vote even beyond the scheduled periods 0 Rockwell Valves, Inc., 111 NLRB 242. DORNBACK FURNACE & FOUNDRY COMPANY 353 and prior to the departure of the election officials from the polls. Neither the Intervenor nor the Employer disputes the factual findings of the Regional Director in any material respect, the Intervenor assert- ing that the employee involved remained at his work during the voting period under an apparent mistaken impression that he would be summoned to vote by a signal. It is clear that this employee failed to exercise his franchise for reasons not attributable in any manner to the Board agent. It is equally apparent that all eligible employees were given ample opportunity to vote, including those waiting in line at the scheduled closing time who, nevertheless, were given a 5-minute -extension of time within which to vote. In these circumstances we adopt the Regional Director's recommendation and find no merit in this objection. The Intervenor further contends that the Petitioner's representa- tive, by means of threats and duress, caused employees to vote for the Petitioner. The Regional Director found that several days before the election an employee told another, with an accompanying move- ment of his hand across his throat, that if he did not vote for the Pe- titioner, the latter would "cut [his] throat and [he] would be kicked out of [his] job and ... this would happen to anyone else who did not vote for the CIO union." The Regional Director further found that the threat was made by a rank-and-file employee who was not shown to be acting as an agent of the Petitioner. He recommended that the objection be overruled because the remark could not be attributed to the Petitioner. Without controverting the foregoing factual findings, the Intervenor excepts on the ground that the employee involved rep- resented himself to be one of Petitioner's leaders, and the threatened employees had sufficient reason to believe that the maker in fact was Petitioner's agent. We agree with the Regional Director that such a threat, coming from a rank-and-file employee with no evidence of any authority, is not enough to create an atmosphere of confusion and -fear of reprisal sufficient to constitute interference warranting the setting aside of the election.' , The Intervenor also asserts that a handbill, distributed by Petitioner to employees prior to the election, contained spurious and false state- ments amounting to interference. The Regional Director found that the handbill was legitimate campaign propaganda and not of such -character as to interfere with the freedom of choice of the voters .8 We * White's Uvalde Msnes, 110 NLRB 278, at 279, and cases cited therein. s The handbill stated that the employees "can't be fooled by this phony Independent Union . . . working with the Company to keep a real union out like (UAW-CIO)," and that the Board would set 'an early election date and the "stalling" of the Employer and the Intervenor "will soon be over." It also urged the workers to vote for Petitioner, to ask themselves where the Intervenor was before the Petitioner became interested in the em- ployees, who was behind the Intervenor , and whose interests "they" were out to pro- tect;the employees' or the Employer's. 390609-56-vol. 115-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with the Regional Director that the distribution of the handbill is not a sufficient ground for setting aside the election. The Board has- -held that normally it will not undertake to consider the truth or falsity of official union utterances, unless the ability of the employees to evaluate such statements has been impaired by the use of campaign trickery.' The alleged false statements generally involved a char- acterization of certain action of the Employer and the Intervenor affecting working conditions of the very employees to whom the cam- paign propaganda was directed and who certainly were in a posi- tion to evaluate it. Accordingly, we find no merit in this objection.19' Another of the objections set forth in the Intervenor's original state- ment of objections was based upon the contention that four ineligible employees had been permitted to vote. The Regional Director in his initial report found that this objection was in the nature of a post- election challenge which the Board would not consider, and, in any event, factually was lacking in merit. In its exceptions, however, the Intervenor urged the additional contention that these four employees cast unchallenged ballots because of alleged improper restraint ex- erted by a Board agent upon an observer for the Intervenor. Further investigation by the Regional Director revealed that during the pre- liminary conference held for the purpose of arranging election details, the question of the eligibility of certain voters arose. After consider- able discussion which resulted in no agreement by the parties concern- ing their eligibility, the Board agent halted further discussion and advised the parties that they were free to challenge the individuals if they attempted to vote. The Regional Director reported that the foregoing'was the "silencing of the Intervenor's observer by the Board agent" to which the Intervenor had referred in its exceptions. The Regional Director also found, as he did in his initial report and as to which no exception was taken, that the names of the four individuals were added toy the eligibility list at the preelection conference with the approval of the Employer, while Intervenor's representative was pres- ent. As their names appeared on the list and no information was given the Board agent at the election that would have resulted in his ques- tioning their eligibility, he had no basis for challenging their ballots sua sponte. Moreover, in an affidavit submitted to the Regional Di- -rector, the Intervenor's observer makes no allegation, and there is no other evidence that the Board agent did not permit him to challenge any voters. As to these factual findings, upon which the Regional Di- rector in his supplemental report recommended that this objection like- wise be overruled, no exceptions have been filed. Accordingly, as 'no 6 Merck & Company, Inc., 104 NLRB 891. See, also , Comfort Slipper Corporation, 112 NLRB 183. 10 See Gong Bell Manufacturing Co., 114 NLRB 342. DORNBACK FURNACE & FOUNDRY COMPANY 355 reason appears for questioning the accuracy of the Regional Director's report, we hereby adopt it and for the reasons stated therein, overrule this objection. In addition, the Intervenor in its exceptions presents as additional grounds for its objections, contentions that the Board agent refused to assist illiterate voters, hurried the election, and that the objections were investigated by the same Board agent who conducted the election. With respect to the allegation concerning illiterate voters, the Re- gional Director reported that the Employer's observer said, in a written statement, that she advised the Board agent that one voter could not read English, to which the agent replied that the voters understood what they were doing and later said that if the voter had asked for help, he would have given it to him. The Regional Director further reported that no voters who requested instructions relating to their ballots were denied such assistance. Because of these facts, he found no merit in this objection. Concerning the assertion that the Board agent "hurried" the election along, the Regional Director likewise found no evidence of improper conduct by the agent, and recommended that this objection be overruled. As no exceptions have been taken to these findings and accordingly there is no basis for questioning their accuracy, we hereby adopt them. In these circumstances and as there are no valid allegations of improper conduct by the Board agent before us, we find no merit in the Intervenor's inferential contention that the investigation of the objections was improperly conducted because it was carried out by the same Board agent who conducted the election.11 Finally, the Intervenor asserts in its exceptions that the Regional Director failed to consider in his report a petition, signed by a majority of the employees after the election, repudiating the Petitioner. As- suming arguendo the correctness of the Intervenor's assertion, this allegation does not relate to conduct affecting the results of the elec- tion, nor to the Regional Director's report on objections.32 As,we have found that the Intervenor's objections do not raise ma- terial or substantial issues affecting the conduct of the election, we overrule them and deny the request of the Intervenor and the Em- ployer for a new election. Because the Petitioner has obtained a ma- jority of the valid votes cast, we shall certify, it as the exclusive repre- sensative of the employees in the appropriate unit. [The Board certified International Union, United Automobile, Air- craft & Agricultural Implement Workers of America, AFL-CIO, as the designated collective-bargaining representative of the employees in the unit found appropriate.] u A. D. JuilIzard and Co., 110 NLRB 2197, at 2198, footnote 1. 12 J Spevak & Co., 110 NLRB 954, 956. Cf . Ray Brooks v. N. I* R. B , 348 U. S. 96